tv 40th Anniversary of United States v. Nixon Oral Argument CSPAN July 19, 2014 12:10pm-3:10pm EDT
new york. and now the oral arguments from july 1974. the supreme court decision that came a few weeks later in the case of u.s. versus nixon. >> we'll hear arguments in 73-1766, united states of america against nixon and the cross-petition, richard m. nixon against the united states. mr. jaworski, there has been a request for additional time. the court then set additional time of one-and-a half hours, i understand. >> that's correct, sir. >> it'll be allowed to each side and we will not interrupt the argument with any recess. we'll go right through until you're finished. >> thank you, sir.
>> you may proceed whenever you're ready, mr. jaworski. >> mr. chief justice and may it please the court. on march 1 last, united states district court grand jury, set it here, returned an indictment against seven defendants charging various offenses including among them a conspiracy to defraud the united states and also to obstruct justice. john mitchell, one of the defendants, was a former attorney general of the united states and also chairman of the committee to reelect the president. another, h.r. haldeman, was the president's chief of staff. another, john ehrlichman, was assistant to the president for economic -- for domestic affairs.
the others were either on the president's staff or held responsible positions on the reelection committee. in the course of its deliberations, the grand jury voted unanimously with 19 members concurring that the course of events in the formation and continuation of the conspiracy was such that president nixon, among a number of others, should be identified as an unindicted co-conspirator in the bill, particular as to be filed in connection with the pretrial proceedings. now, although this particular decision and determination on the part of the grand jury occurred in february, it was a well-kept secret for two-and-a half months. the grand jury, of course, knew it. the members of the prosecution staff knew it. it was done so to avoid
affecting the proceedings in a house judiciary committee. it was so kept during these two-and-a half months until it became necessary to reveal it as a result of the president's motion to quash a subpoena, as i will indicate subsequently in my argument. now, to obtain addition evidence which the special prosecutor has good reason to believe is in the possession of and under the control of the president and which it is believed by the special prosecutor as quite important to the development of the government's proof at the trial in united states versus mitchell. a special prosecutor, on behalf of the united states, moved for a subpoena duces tecum. and, it is the subpoena here in question. the district court ordered the subpoena to issue returnable on may 2 and the subpoena, of
course, called for the production of tape recordings in advance of september 9, 1972 which is a trial date. and, this was done to allow time for litigation in the event litigation was to ensue over the production of the tapes and also for transcription and authentication of any tape recordings that were produced in response to the subpoena. on april 30, the president released to the public and submitted to the house judiciary committee 1,216 pages of edited transcripts of 43 conversations dealing with watergate. portions of 20 of the subpoenaed conversations were included among the 43.
then, on may 1, the president advised counsel to file a special appearance, a formal claim of privilege, and a motion to quash a subpoena. now for the united states to conduct a full and appropriate hearing on a motion to quash the subpoena, it became necessary to reveal the grand jury's finding regarding the president. and, this was first done by the special prosecutor calling on the chief of staff, general alexander haig, and the president's counsel, mr. st. claire, and advising them of what had occurred two-and-a half months prior. and then, on the following morning, advising judge rico of
what had occurred in camera and pointing out at the necessity of this being used in connection with the arguments on a motion to quash because of their relevance and the necessity of these matters being made a part of the proceeding. now, the special prosecutor joined counsel for the president in urging that matter be heard in camera, which, was done. three of the defendants had joined the special prosecutor in moving for the subpoena. all of the defendants, at the time of argument in camera to judge sirica, opposed the motion to quash. >> i don't see the relevancy of the fact that the grand jury indicted the president as co-conspirator. the legal issue, as to the duty to deliver pursuant to the subpoena that you are asking for -- >> the only relevance, mr. justice, lies in it being
necessary to show under rule 17c that there is some relevance to the material that we were seeking to subpoena, and -- >> yes, but 17c presupposes a subpoena running against the party, and the president is no party. he's not a defendant in one of these cases. >> that's correct, sir, but it was felt it would be necessary to show why. and, in order to prove this conspiracy and in order to provide all of the links in the conspiracy, it was deemed necessary to show that the president or his name was indicted co-conspirator and also that there's prudence. >> i thought that was primarily just for the collage information of the house judiciary committee. >> no, sir. that is not correct, sir. it became very important, mr. justice, for us to have that as a part of proceedings so that we could use the various links in the testimony, so as to show that the conversations were such as to make one admissible as
against a co-conspirator. >> the grand jury sent it to the house committee, didn't it? >> the grand jury sent nothing of an accusatory nature to the house committee. no, sir, what the grand jury sent to the house committee was the evidence that had been accumulated and it, very carefully, excised from it anything by way of the grand jury's interpretation or anything along that line, mr. justice. now, in its opinion and order of may 20, the district court first -- >> you'd still be here, mr. jaworski, whether or not the president had been named as an unindicted co-conspirator but that simply gives you another string to your bow. isn't that about it? >> it's true that it admits some evidence that would otherwise not be admissible. >> right, but even had the president not been named, you would still have subpoena at least part of this material. >> there's no question about that, yes, sir. >> and you'd still be here. >> that's right, sir. >> would you not? >> that's right, sir.
but, in order to present the full picture and in order to present, that also was a part of it. district court denied the motion to quash and the motion to expunge had also been filed. >> no one yet has ever suggested that if you're in a criminal trial, conspiracy trial, and some evidence is authored of an out-of-court statement of someone who's alleged to be a co-conspirator, that it's enough for the prosecution to then show that the grand jury had named him the co-conspirator. >> no. >> that never gets you or will never get you over the -- >> no, and we don't so contend. >> well, then that was the point. that was the direction of your -- >> no, this was in connection with the subpoenaing of this evidence, mr. justice. in other words, this was in connection with showing that we had the right to this evidence. >> i understand that. >> yes, sir. >> but -- >> and that was the point. >> but you do not suggest that that's all you need to show. is that it? >> no, sir, of course not. >> or you don't suggest that the grand jury finding is binding on
the court or not? >> i do suggest that it makes a prima facie case. and i think, under the authorities, it so does. >> let me understand this, mr. jaworski. you don't suggest that your right to this evidence depends upon the president having the name as an unindicted co-conspirator. >> no, sir. >> and so, for the purposes of our decision, we could lay that fact aside, couldn't we? >> what i was really doing in pointing to that -- >> well, could we? >> yes. primarily was an order to show a reason for the grand jury's action. there is also before this court a motion to expunge the act of the grand jury in naming the president as an unindicted co-conspirator. and, i was trying to lay before the court the entire situation that warranted that action. >> mr. jaworski. >> yes, sir. >> as i understand your brief, you go beyond what you have addressed so far.
i think you say that the mere fact that the president was named as an unindicted co-conspirator forecloses his claim of privilege. >> well, we certainly point -- >> it's in page 91 of your brief. >> we certainly make that as one of the points, which, i intend to discuss that later. >> well, that reduces him, in it of itself, to the status of any other person accused of crime. >> i don't say that it foreclose this. what i think we suggest is that it does present a situation here. that should not make the application of executive privilege appropriate. we do say that. >> but only prima facie. >> prima facie, that's correct. but when you get to the matter, mr. justice powell, of balancing interests we do feel that that particular situation is a factor that is important. and, this is why we laid stress on it. the court's order, of course,
was to deliver to the court the originals of all subpoenaed items as well as an index analysis of those items, together with taped copies of those portions of the subpoena recordings for which transcripts had been released to the public by the president on april 30. now, this case presents for review the action of the lower court. now may i, before i get to the jurisdictional points, briefly state what we consider to be a bird's eye view of this case. now invest in almost 500 pages of briefs, when boiled down, this case really presents one fundamental issue. who is to be the arbiter of what the constitution says? basically, this is not a novel question, although the factual
situation involved is, of course, unprecedented. there are primary questions to be sure. but in the end, after the rounds have been made, we return to face these flaring facts that i want to briefly review for the final answer. in refusing to produce the evidence sought by a subpoena duces tecum in the criminal trial of seven defendants, among them, former chief of aids and dubieties, the president invokes the provisions of the constitution. his counsel's brief is replete with references for the constitution as justifying his position. and in his public statement, as we all know, the president has embraced the constitution that's offering him support for his refusal to supply the subpoenaed tapes. now, the president may be right in how he reads the constitution. but, he may also be wrong. and if he is wrong, who is there to tell him so? and if there's no one, then the president, of course, is free to pursue his course of erroneous interpretations. what then becomes of our constitutional form of government? so when counsel for the president, in his brief, states that this case goes to the heart of our basic constitutional system, we agree because, in our view, this nation's constitutional form of government is in serious jeopardy. if the president, any president, is to say that the constitution means what he says it does and
>> yes? >> the president went to a court. he went to the district court with his motion to quash and then he filed a cross-petition here. he's not -- he's asking the court to say that his position is correct as a matter of law. is he not? >> he's saying his position is correct because he interprets the constitution that way. >> correct. >> this is what he says -- >> and he's asking -- he's submitting his position to the court and asking us to agree with him. he went, first, to the district court and he petitioned in this court. he's not -- he has, himself, invoked the judicial process and he is committed to it. >> well, that's not entirely correct, mr. justice. >> didn't he file a motion to quash the subpoenas in the district court or the united states? >> while the motion to quash the subpoena in sirica has also taken the position that we have no standing in this court to have this issue heard. >> as a matter of law. he's making that argument to a court. as a matter of constitutional law, he is correct. >> so that, of course, this court could then not pass upon the constitutional question of how he interprets the constitution if his position were correct, but -- >> as a matter of law, if his
position is correct -- >> that's right, sir. >> then he is the sole judge. >> that's right. >> and he's asking this court to agree with that proposition as a matter of constitutional law. >> but what i'm saying is, if he is the sole judge and he is to be considered the sole judge and he is in error in his interpretation, then he goes on being in error in his interpretation. >> well, then this court will tell him so. that's what this case is about, isn't it? >> well, that's what i think the case is about. yes, sir. >> in submitting himself to the judicial process in the same sense that you are, is that not so, mr. jaworski? >> well, i can't say that -- >> you take one position and he
takes another. >> well mr. chief justice, in my view, frankly, it is a position where he says "a constitution says this and nobody is going to tell me what the constitution says" because, up to this point, he says that he and he alone is the proper one to interpret the constitution. now, there's now way to escape that because the briefs definitely point that out time after time. >> i think this matter may be one of semantics. each of you is taking a different position on the basic question and each of you is submitting for decision to this court. >> well, we start with -- >> it may be, sir. >> we start with a constitution that does not contain the words "executive privilege," is that right? >> that's right, sir. >> so, why don't we go on from there? >> alright, sir. that is a very good beginning point but, of course, other things have needed to be discussed as much as they've been raised.
>> perhaps it would further narrow the area if, as i take it from your briefs, you do emphasize there is no claim here of typical military secrets or diplomatic secrets or what, in the burr case, were referred to as state secretes. none of those things are in this case. is that right? >> that is correct, sir, and we do point to the authorities to show that there is a difference in the situation here. i do think that it's proper, as much as i regret to have to do it, to point that the president's interpretation of what his action should be in these particular set of
circumstances as one that really requires judicial intervention, perhaps more so than a normal one would. i think that we realize that there is at steak the matter of the supplying of evidence that relates to the due form of close aids and dubieties. i think we're aware of the fact that the president had publicly stated that he believed that these two aids of his, mr. haldeman and mr. ehrlichman would come out alright in the end. added to that, the fact that the president has sensitivity or own involvement is also a matter that calls for the exercise of the question to which mr. justice douglas alluded as one that is somewhat unusual. turning now to jurisdiction, before the court are the two questions of statutory jurisdiction. the court directed the parties to brief and argue. >> mr. jaworski, at this point, help me over one hurdle. do you feel that the mandamus case as such as here? i searched your petition --
>> yes, we do, sir. >> i searched your petition for certiorari in vain to find even a mention of it, and i wonder. it's a technical question but the -- what is your position? that the issue is in any of entered here? >> yes, sir. >> whether the case is not -- >> we say it's here not only because of the appeal itself, but also because of the petition for mandamus. now we did, mr. justice, discussed that in one of the briefs. now, it may be that it wasn't originally when we filed the original brief on jurisdiction. >> you mentioned it in your second brief on the merits. >> yes. >> but not at all in your petition for certiorari. >> well, we did in the -- it was in the footnote on page 2 of the petitioner for writ of certiorari, mr. justice. well, i would think so but there really is no issue between the parties here on the issue of jurisdiction. i mean, there's no argument as between the parties on it.
and, while of course the parties can't agree on it, i must say that on three different bases the jurisdiction does exist as we see it. now, i am not yet getting to the question of the intra-executive matter that has been raised but i am discussing now the statutory basis of jurisdiction, and -- >> (inaudible) >> to answer your question directly, sir, this is correct. we are standing upon not only the matter that this is an appeal that properly had been in the court of appeals and, for that reason, has been moved up here properly under 1254-1. we also say that court has jurisdiction over the petition and cross-petition under 1254-1 because it present for review all questions raised by the president's petition for writ of mandamus.
and then we also say that, in addition to that, the all writs act gives this court jurisdiction to proceed. >> of course, in a mandamus action, judge sirica would be the party respondent and he's not a party in this case and he's not represented by counsel here, is he? >> as far as i know, he's not, no, sir. in fact, i'm sure he's not. >> and the mandamus would be nixon versus sirica, would it not? >> but it was brought up by the president in their petition for mandamus and that's right. that's the way it got into this court. it raises the same questions actually that were raised on the matter that we brought upon. >> what was the chronology, mr. jaworski? the notice of appeal from judge sirica's order was the first step taken to get to the court of appeals, was it? >> that's, i believe, right, sir and --
>> and while that was pending, then i gather, the president petitioned for mandamus was brought. >> right, sir. yes. >> and then the last step was that you filed the petition to bypass here. >> right, sir. >> and that petition to bypass filed, i gather, to whatever case was pending in the court of appeals? >> that's correct, sir. >> and at that time, the case pending was both the appeal from judge sirica's office -- >> that's right, sir. >> and the president's petition -- >> mandamus, correct. >> which you feel they are not two cases? >> no, sir. they raise the same questions but that's -- >> and yet, you could bring each up separately if you so chose. >> i could have, sir, yes. >> it seems to me there're two cases. >> but in as much as they present the same questions, it occurred to us that it was appropriate to rely upon the jurisdiction as to both of them. >> except, i would suggest again that, with respect to the mandamus action, one of the parties isn't here in court or presented by counsel. he is the party respondent. >> well, it is -- i don't have the record before me but, i must say and i will not make an outright representation that judge sirica is, and that's why i hesitated a few minutes ago, was made a party after all that was brought up by the president.
but, i am advised by a note just passed to me by mr. lacovara that judge sirica is a party to that proceeding. >> who represents him here? >> i don't know of anyone representing him here, mr. justice. >> has he filed any brief or made an appearance at all in any sense? >> so far as i know, none. >> well, if you're right that, at any event, judge sirica's order was an appealable order. >> that's correct. >> if you're correct in that submission, do we ever have to reach any issues raised by the mandamus? >> no, it would not. we were pointing out that the jurisdiction rests on a three-prong basis. >> but the mandamus is not your action. >> it's not, no, sir. >> and you're not obliging the defendant, are you? >> that's correct, sir. we, however, were pointing out that the same issues really were raised by it if the petitioner is properly before the court.
now, if there are no further questions on the matter of statutory jurisdiction, i would like to pass to the intra-executive dispute. first, we recognize, of course, that jurisdiction cannot be waived and nothing that is presented here is with the idea of suggesting even remotely that there is any waiver with respect to the questions of jurisdiction. but, we do say that the contention is that there is an intra-executive dispute and, for that reason, this court cannot pass up on these questions as not sound. before discussing the case as, however, i think that it would be appropriate for us to undertake the bases in the right perspective. let me say, first, that we stand upon two bases. first, that, actually, the orders that were entered creating the office of the
special prosecutor and delineating his authority, even the original order at the time that my predecessor was acting as special prosecutor had the force and effect of law. we also point to the fact that the arrangement made itself with the acting attorney general that i made, if i may point to it, and one reason i have no resonance in discussing the facts is because the facts are undisputed. there has been no dispute raised as to just what actually transpired. the situation is one of the arrangements itself which the acting attorney general points to, with respect to the matter of independence having been discussed by him with the president. thus, meaning that the president, himself, had approved the setting up of this particular office and the rights and the responsibilities that it has under the charter. now, let me -- we set this out in the appendix, of course, pointing precisely to what the
authority and responsibilities and obligations of the special prosecutor are. one of the expressed duties that's delegated to the special prosecutor is that he shall have full authority for investigating and prosecuting, among others, allegations involving the president. and a delegation of authority expressly states in particular the special prosecutor shall have full authority to determine whether or not to contest the assertion of executive privilege or any other testimonial
privilege. now in the instance of my appointment, unlike the appointment that had been made prior thereto, there was an amended order and it referred to assurances given by the president to the attorney general that the president will not exercise his constitutional powers to affect the stories of the special prosecutor or to limit the independence that he's hereby given, and that he will not be removed from his duties except for extraordinary improprieties on his part and without the president's first consulting the majority and the minority leaders and the chairman in ranking the minority members of the judiciary committees and the senate and house representatives, and ascertaining that their consensus is in accord with the proposed action. and then, that the jurisdiction of the special prosecutor will not be limited without the president's first consulting with such members of congress and ascertaining that their consensus is in accord with his proposed action. now, at the time -- >> it's not important. what does consensus mean, unanimous?
>> no, sir, it hadn't been interpreted by the acting attorney general in conversation as meaning 6 of 8. >> i take it when you make reference to this you are, in effect, suggesting that your position is certainly different than if a united states attorney were prosecuting this case. >> that's correct, sir. i think we have what might be termed a quasi-independent status where they were delegated to this particular office the performance of certain functions and there's no reason why the president couldn't have delegated those to us. as a matter of fact, when -- >> mr. jaworski. >> yes? >> quasi-independent in the sense of an agency? >> yes, sir, for instance, as a control of currency. he has a state of somewhat similar to that. and, we know that there are
suits brought between the department of justice and the controller just the other day. >> i am troubled with your position being similar to us attorney because the us attorney is absolutely under the thumb of the attorney general. >> well, i didn't it. what i meant was we had an independent status that was really different from the status of the united states attorney. >> i'm sorry. >> i thought that was the way i answered the question. now, i should say that it's interesting when the case of nixon versus sirica was before the court of appeals. professor charles alan wright, who was then arguing the case and who was not on the original brief but have serviced on the reply brief filed on behalf of the president, at that time argued with respect to the particular office of the special prosecutor. now, in this instance, we have a division of function within the executive and that my friend mr.
cox, referring to mr. archibald cox, has been given absolute independence. it is for him to decide whom he will seek to indict. it is for him to decide to whom he will give immunity, a decision that ordinarily would be made at the level of the attorney general or, in an important enough case, at the level or the president. but the president's present counsel in his motion to quash, as he does here accept the words used are different but the effect is the same, is contending to the court that the president has the right to determine who, when, and with what information individuals should be prosecuted. >> nixon versus sirica was
different, in that, the parties there where the grand jury, on the one hand, represented to be sure by the special prosecutor. but the grand jury, which is an adjunct of the judicial branch of government on the one hand, and the chief executive on the other. and here, now that an indictment has been returned, the two parties are both members of the executive branch. isn't that correct that there is that difference? >> yes, but the independent -- yes, sir, that is correct but i don't think it's a distinction as to the substantive right -- >> now, you are a member. you're united states and the people of united states, whom you represent. you are not a member of the judicial branch unlike the grand jury in nixon against sirica. you're a member of the executive
branch of government, are you not? >> that's correct, sir, yes. >> and there is that difference. >> there is that difference, yes, but -- >> it might be a crucial difference, was it not? >> i don't think that the description to which i have pointed as to the independent status of the independent executor would be different in the sirica case as it would be in this case. and, i was barely -- >> no. you're, if anything, more independent than mr. cox was under the regulation. >> that's correct, sir. >> but that doesn't really go to the question that i raised. >> yes, sir. i realize that. now may i, however, indicate very briefly, and i know this is an important question but i do feel that the facts ought to be before the court in detail, indicate just what did transpire with respect to how these particular regulations, this order, was interpreted by the president's acting attorney general and also by the attorney general designate and also by
the president, himself, and by the president's chief of staff, general haig. mr. bork, in hearings at a time when congress was pressing the bill of an independent special prosecutor, testified that "although it is anticipated that mr. jaworski will receive cooperation from the white house in getting any evidence he feels, he needs to conduct investigations from prosecutions." it is clear and understood on all sides that he has he power to use judicial processes to pursue evidence if disagreement should develop. it was further pointed out -- >> you're quoting from whom and what -- >> acting attorney general
bork's testimony in the house. >> and in what occasion? >> after i have been appointed and in connection with the hearings on the bill to establish an independent prosecutor by congressional act. >> thank you. >> then, he further said, i understand and it is clear to me, that "mr. jaworski can go to court and test out," and these are the important words, "and test out any refusal to produce documents on the grounds of confidentiality." and attorney general saxbe, then a designate who was also present at the time that this matter was discussed and at the time that i accepted the responsibilities, testified that i had the right to contest an assertion of executive privilege and stated that i can go to court at any time to determine that. now the president himself, as we point out in our brief, in announcing the appointment of a new independent prosecutor, stated to the nation that he had no greater interest than to see that the new special prosecutor has the cooperation from the executive branch and the independence that he needs to
bring about that conclusion of the watergate investigation. the president's chief of staff, at the time that this appointment was accepted and at the time that the new regulations were then drafted by the acting attorney general, had assured me, and this is a part of the record, because a letter was written at the request of senator hugh scott to the white house as a result of discussions that he had with general haig in which i sent a copy of the testimony that i had given to the congressional committees, to the white house so it would fully be aware of it and the receipt of it was acknowledged without any change in the testimony.
so, i had been assured of the right to judicial process and by him after he had reviewed the matter with the president and he came and told me that i would have the right to take the president to court, and that these were the key words in this arrangement, and that the right would not be questioned. of course, this independence was given to the special prosecutor. actually, it was but an echo of public demand. and, if i may be permitted to say so, it was the only basis on which, after what had occurred and a predecessor had been discharged, it was on a basis on which that special prosecutor could have felt that he could come and serve and undertake to perform these functions. it's important, i think, to observe that the counsel for the president in his brief, by accepting the proposition that the president and the attorney general can delegate certain executive functions to subordinate officers, implicitly has conceded, so we think, the validity of the regulations delegating prosecutorial powers to the special prosecutor. the regulations specifically
provide, as you will notice from the appendix and we have set them out, that the attorney general will not counterman or interfere with the special prosecutor's decisions or actions. this is also a part of the charter. just to argue as has been done in these briefs, that the separation of powers precludes the courts from entertaining this action because it is the exclusive prerogative of the executive branch, not the judiciary, to determine whom to prosecute, on what charges, and with what evidence, we think, misses the point. what has evolved from the regulations, in our view, is a prosecutorial force with certain exclusive responsibilities. and this is why i say that to some degree it could be described as a quasi-independent agency. it's not unlike our situation as the case we alluded to a few minutes ago, decided by the court just a week or so ago. it's not unlike the case of the secretary of agriculture versus the united states. this is the first time that there has been an action brought by one member of the executive branch against another official in the executive branch.
and, we refer to these cases in our briefs in detail. now, i want to make it clear that the president, at no point of course, delegated to the special prosecutor the exclusive right to pass on the question of executive privilege or any other privilege, attorney-inclined privilege, or any other testimonial privilege. what we are merely saying is that we have the clear right to test it in this court, and this is on what we stand. well because of the passage of time, if i may, i think i should get to other discussions unless there are questions on this particular point. passing to the merits, we would say that if there is any one principle of law that marbury versus madison cites, it is that it is up to the court to say what the law is and almost to the point of redundancy but necessary because it was a
landmark decision. chief justice marshall reasoned, we think, with clarity and emphasis that it is emphatically the province and the duty of the judicial department to say what the law is. and this court of course, through the years, has reaffirmed consistently applied that rule. it's done it in a number of cases, in powell versus mccormack, in the youngstown steel seizure case, and doe versus mcmillan. and a footnote, i think a very important one, appears in that opinion when mr. justice white pointed out that while an inquiry such as involved in a present case, because it involves two coordinate branches of government, must necessarily have separation of power implications.
the separation of powers doctrine has not previously prevented this court from reviewing the acts of congress even when, it is pointed out, the executive branch is also involved. now, there are a number of cases that speak to that. i think one of the cases that went into greater detail and also points out quite a distinguishing feature is the gravel case where as, in the gravel case, the court did hold that it was appropriate to go into certain matters where a privilege had been exercised on a part of a senator on behalf of his aid. there are two things that i believe clearly help us in that decision and also other decisions as far as the questions here are involved. one is that the speech or debate clause is in the constitution,
as is the journal clause. it's in the constitution. it's written in there. and, this is what was invoked. i don't find anything written in the constitution and nothing has been pointed that is a writing in the constitution that relates to the right of the exercise of executive privilege on the part of the president. another very important thing that's pointed out in that case is that it did involve an examination into wrongdoing on that part of those who were seeking to invoke the privilege. >> is the term "executive privilege" an ancient one? >> i beg your pardon, sir? >> is the term "executive privilege" an ancient one? >> it has been used over a period of time. how ancient, mr. justice brennan, i'm not in position to say. but, certainly, it has been one that's been used over the years but it is not one that i find it
a basis for in the constitution. >> are you, now, arguing that there is no such thing as executive privilege. >> no, sir. >> i didn't think so. >> no, sir, but i said it had no basis for it in the constitutions but -- >> do you think, if anything, it's a common law privilege? is that your point? >> yes, sir, and that it has been judicially recognized, and appropriately so, in a number of cases. as we see it, we do not think that it is an appropriate one in this case but we certainly do not, for a moment, feel that it has any constitutional face. >> in sawyer against rose i thought we held that there is a common law privilege in the executives dealing at the state level, but that it is a qualified privilege, is that not so? >> mr. chief justice, that is exactly the point. this court has examined a number of situations and in some situations as, i think, was pointed out earlier where military secrets and such as that were involved or national
secrets of great importance, the court has taken a good close look and has upheld privilege. but -- >> when you say "has taken a good close look," without looking at the evidence sometimes has taken a good close look at the claim and the basis of the claim. is that what you mean? >> that's what i mean. yes, sir. >> but hasn't this court said that it did have constitutional overtone? >> it said that it had constitutional overtones and i don't know it may have been used but it -- >> tort claims, i think. >> yes, but it certainly has never placed it in the constitution, so far as i'm aware of, and president's counsel who have carefully examined the authorities. >> that was (inaudible) chemical corporation who supported the claims.
>> yes. >> in that great review. >> it's judicially tailored? >> yes, sir. >> is it your view that there are no inferences to be arrived from the doctrine of separation of powers or you're saying this is purely an evidentiary privilege? >> that the privilege, as recognized judicially, may have been tied into the separation of powers doctrine, we don't deny. what we say is that separation of powers doctrine, in the exercise and the calling for executive privilege, has not been applied. in a number of instances involving both congress and involving also the executive, despite the fact that even in congressional situations, speech and debate clause is there. what i am saying is that the
separation of powers doctrine, as was pointed to in the doe versus mcmillan case, has not been permitted to stand in the way of this court examining it in the standpoint of whether the executive privilege should be permitted or not. this is what i'm saying. >> in reynolds, the court ended up treating the assertion of privilege there as an evidentiary privilege, but it did allude to the fact that there was a constitutional question and said the court wasn't reaching it, as i recall. >> the issue of executive privilege, i should point out here, is a very narrow one. and, i think it's important that we bear this in mind. it doesn't involve a very large or broad privilege rights. what it really narrows down to is somewhat simple but very important issue in the administrative of criminal justice and that is whether the president, in a pending prosecution, can withhold material evidence from the court merely on his assertion that the evidence involves confidential communications and this is what really it gets down to.
we know that sovereign prerogatives to protect the confidentiality necessary to carryout responsibilities in the fields of international relations and national defense are not, here, involved. and, there is no claim of any state secrets or that disclosure will have dire effect on a nation or its people. actually, i think when we get to wayne and the non-disclosure as against disclosure and i think when we begin to lay the balance of interest, it would seem to me that the balance clearly lies in favor of a disclosure in a situation such as the circumstance here. of course -- >> it certainly would not be true in case the fifth amendment was involved, but that's not present here. >> not present, mr. justice douglas, and there is no question about what the fifth amendment has very plainly written out in the constitution
and is invoked as a clear constitutional privilege. i think it would be of help if i may point out to the court, that there is an excellent article that we have alluded to in our briefs by professor berger that appears in a yale law journal which discusses the ehrenberg case at length and also other cases that have been pointed to since the time of that case. and, if i may just say very briefly, that summarizes the situation by saying that the heart of marshall's opinion was, therefore, just as summarized by the court of appeals in the nixon v. sirica case and the tapes case that we have talked about. the court was to show respect for the president's reason, but the ultimate decision remained with the court. and we are not suggesting, for a moment, here that the matter of
executive privilege should not be looked into. this is not -- it deserves to be tested. it should be tested and we urge that it be tested. but, the ultimate decision is not one of saying that it is absolute that it rests on the constitution that it doesn't entitle anyone and doesn't authorize anyone. it doesn't even authorize this court to look into it, because if the courts are the ultimate interpreters of the constitution and can restrain congress to operate within the constitutional balance, they certainly shouldn't be empowered and lest to measure presidential claims of constitutional powers. i wanted briefly to make mention of the questions that has been raised by counsel for the
president that involves a motion to expunge the finding of the grand jury's action that the president is to be named as an unindicted co-conspirator along with a number of others when the pretrial proceedings are going into, and a bill of particulars and i say that the grand jury's finding, painful as it is, i think, on the part of the court, must be considered as being valid and sufficient to show a prima facie. it is sufficient to show a prima facie that the president was involved in the proceedings in the course and the continuation of the particular conspiracy that was charged. >> well, is that the issue, mr. jaworski, or is the issue whether there could be a collateral attack? >> that's also another issue. but i merely wanted to point out that i believe that this court would not go into the grand jury's findings, but it's a prima facie matter and that this court would not go into it for
the purpose of determining a matter of that kind. >> i thought we have put that issue aside a while ago. i just don't understand what relevance it is to this case. >> well, i have to agree with you, neither do i see what the relevance is of the matter of saying that there's another argument advanced here and that is that the president can't be indicted. and, i don't know what the relevance of that is in this case either, very frankly, because it isn't before the court. and, yet, the argument is made and many pages of briefs are devoted to it. >> i just wonder, mr. jaworski, why you don't, on content, with just arguing it is irrelevant without thinking on the right -- >> well, this is why i skipped the argument with respect to the matter of whether he could be indicted or not. but as much as the question had been raised and briefed and a motion exist before the court, i have to agree that it is irrelevant but it is a part of
the case, and that's the only reason i alluded to it and i have no interesting in spending much time on it. >> well, except, part of the grounds on which you rest in subpoenaing this material is the fact that the president has himself been named as a co-conspirator, an unindicted one. and, that's true, isn't it? that's a part of -- >> right. >> these two grounds upon which you rest in subpoenaing this material. and, the response to that is, the president cannot constitutionally be named as an unindicted co-conspirator. so, to that extent, it's in this case. the question's in this case. >> well, i don't think it's a matter that, very frankly, has any particular basis to it because i don't see how this court could be asked to substitute its judgment for that of the grand jury. >> well, that's something quite different again, whether or not there was sufficient evidence before the grand jury to justify the grand jury in naming the president. that's quite a different and, as chief justice suggested, a collateral issue. >> that's right.
>> but the issue of whether or not the president can constitutionally be named by a grand jury as a co-conspirator, even though an unindicted one, it is at least tangentially before us because that's -- it's the fact that he's part of the grounds and part of the foundation upon which you have based your subpoena duces tecum. >> not only that, i think that it has, to pinpoint it in our view, a materiality because it does relate to the question of the proof that we are seeking the relevance of the proof that we are seeking. and this gets into, of course, a discussion of matters that are sealed and which i cannot discuss with the court. >> i understand, right. >> but whether or not he had the authority, they did, it is a fact that the grand jury did it. >> that's correct, sir.
>> so it doesn't -- i don't see how we have anything to do with whether they had authority or not. it's a fact. isn't that true? >> that's, i think, correct. now -- >> i thought the heart of this case were the rights of defendants in criminal trial? >> that -- >> nevertheless -- >> that is very much -- >> that may be exculpatory and free them of all liabilities. i don't know but i -- >> well, certainly, it's in the case now and, of course, which you have reference too also, i'm sure, mr. justice douglas, as the bray and the jinks, maryland versus bray and the jinks. and, this is a part of the case. however, it happens not to be a part of the appeal, although it
is a part of the case. but as far as our position is concerned, it doesn't relate to that. but, certainly, it's true that this material, as we had pointed out in our communications to the president, may well involve exculpatory matters and we, time and again, pointed out we wanted them not simply because we felt that there were matters that needed to be developed in connection with the prosecution, but that they could well contain exculpatory matters. >> but the brady question really lurks just in the background, does it not? that is, if you get information, whatever you get -- >> would be available. >> you would concede is available to any defendant -- >> that's right, mr. chief justice. >> who can make the showing. >> that's correct, sir. >> and the question of whether or not the defendants, under the brady doctrine, are entitled to subpoenaing information. and material that's not now in your possession, but is in the possession of the president, was an issue that was left undecided by the district court. >> that's correct, sir. >> am i right about that? >> it's not before this court. i believe, with the permission of the court, unless there are further questions, i'll reserve the rest of the time for the close.
>> mr. st. clair. >> mr. chief justice and members of the court. my learned brothers approached this case i think in the traditional point of view, namely, this is an attempt by a special prosecutor to obtain what he thinks is desirable evidence in a criminal prosecution that he has a responsibility for. not once, however, have i heard him mention what i think is really involved, at least in a significant part, and that is the co-pendency of the impeachment proceedings before the house of representatives. and, the realistic fusion that has taken place with respect to these two proceedings and the promise of continued fusion, as i understand my brother's
position. may i quote from page 50 -- >> none of our problems, are they? >> i think, sir, they really are. first, by way of factual background -- >> the sole authority to impeach this in the house -- >> that's correct. >> the sole authority to try this in the senate. >> right, and the court shall not be used to implement or aid that process which what has happened in this case. this case wouldn't be here on july 8. >> how is that? >> just how is this done? >> all right. >> how is this case implemented? >> i would like to review some of the facts for you in this regard. >> which are in the record? >> yes, my brother has mentioned them to you. >> no, but are they in the record, not what he's mentioned. >> yes, sir. >> well, we're just an adjunct of the house. this case should be dismissed as improvidently granted, isn't it? >> exactly right, sir. not only that, it makes the case unjusticiable at least. now -- >> but the district court's
decision stands. is that what you want? >> no, the case should be dismissed, sir. >> if we dismiss as improvidently granted, i submit the district court's premium would -- the judgment would stand. >> then i would retract what i said. this case should be dismissed.[laughter] >> the case would be on appeal in the court of appeals if we dismissed it. >> all right. >> are you now talking about the bypassing of the court of appeals? >> no, sir. i'm talking about the proceeding before the district court through the court of appeals to this court. >> well, if we dismiss this appeal as improvidently granted, it would go back to the court of appeals. >> well, as i say, i think this case should be dismissed. >> no, really what you mean, isn't it, you think that the order of judge sirica should be vacated -- >> set aside. >> and set aside. >> that's right, yes. >> that's quite different from dismissing the case. >> i agree. >> that's deciding it on the merits. >> that's right. that's why i'm trying to get across to this court, perhaps on
our plea, this case should be disposed of, be it by vacating the order below or not. but, in any event, it is improper in our view that this case should be heard in the context it is now being heard. we wouldn't be here on july 8 before a crowded courtroom if it was not recognized generally. >> well, it's a political question here -- >> exactly right. >> it's a political question in the district court. >> and, therefore, it's a non-justiciable issue in this and in the district court. what has happened in this case is -- >> did you argue that to the district judge? >> i believe we argued a non-justiciability argument. yes, sir. i know we did, but if you're -- >> your position is that the issuance of a subpoena duces tecum is not a justiciable issue. >> in this context at this time, sir. what has happened is this.
as you know, on february 24, a grand jury secretly named the president among others as an unindicted co-conspirator. that fact was not made known. on march 1, an indictment was returned against a number of the president's chief aids. coincident with that in an open courtroom, the assistant prosecutor, special prosecutor, handed up to the judge a bag together with a sealed letter requesting that this material be sent over to the house of representatives. the president took no position regarding that proposal because he considered it to be probably appropriate, under the belief that there was nothing accusatory in that material. judge sirica, himself, reviewed the material, found nothing accusatory and said it would therefore be quite appropriate to send this material to the house of representatives not realizing and not knowing that the special prosecutor had
previously obtained a secret charge against the president and others which was definitely accusatory. >> but that, as i understand it, was not among the material that was conveyed to the grand jury. there seems to be, if i'm -- at least that's what i understood mr. jaworski to tell us this morning. >> the material was turned over. it was before the grand jury. >> now, just a moment. i understood mr. jaworski to tell us this morning, very unambiguously and explicitly, that the fact that the president was named as an unindicted co-conspirator was not conveyed to the grand jury. >> a grand jury -- >> it was released, i think, to the house of representatives. >> no, it was not. >> i thought- >> the material was sent to the house of representatives in the belief that it was non-accusatory in nature. it was simply a recital of facts. >> exactly, and that's what mr. jaworski has represented again to us this morning, was the fact of the matter.
>> but the --mr. jaworski had available to him, unknown to the judge and unknown to counsel for the president, a secret indictment naming the president as a co-conspirator. the accusatory part followed later. >> now, followed in what form? >> by a newspaper leak. >> yes, it wasn't sent from the court over to the house, was it? >> it didn't have to be. all they had to do was read the newspaper. there can be no question about it. and therefore, i say, this case has to be viewed realistically in the context that it is now being heard. >> i'm not sure, perhaps you can help me. are you suggesting that there was some duty on the part of the special prosecutor to disclose to the district judge that there was this secret indictment before the judge passed on whether the material should be sent to the house? >> i think it would've been quite appropriate because the
judge's decision was based on the proposition there was nothing accusatory. that, under the circumstances, absolute fairness was appropriate and required in so far as the president was concerned. no one could argue that the indictment as a co-conspirator or naming as a co-conspirator does anything but impair the president's position before the house of representatives. that should, in my judgment, have been made known to the judge. i don't know what he would've done under those circumstances. his decision was based solidly on the proposition there was nothing accusatory in the material. now, my brother says in his brief that this material he now seeks, of course, would be available to the house committee and will be used to determine whether or not the president should be impeached. so, this fusion is going to continue.
and under the constitution, as we view it, only the legislature has the right to conduct impeachment proceedings. the courts have been, from the history involved and from the language of the provisions, excluded from that function. and, yet, the special prosecutor is drawing this court in to those proceedings inevitably and inexorably. no one could stand here and argue with any candor that the decision of this court would have no impact whatsoever on the pending inquiry before the house of representatives concerning the impeachment of the president. >> how far does your point go? let's assume that a murder took place on the streets of washington of which the
president happened to be one of the very few eyewitnesses, and somebody was indicted for that murder and the president was subpoenaed as a witness. would you say he cannot be subpoenaed now because there is an impeachment inquiry going on and the courts absolutely have to stop dead on their tracks of doing their ordinary judicial business? >> i would not say that. i don't think he could be necessarily subpoenaed. i don't think the president is subject to the process of the court, unless he so determines he would give evidence. but, the murder would have -- >> setting that to one side. >> in this case -- >> you're saying that the courts, as i understand it, have to stop dead in their tracks from doing their ordinary business in any matter involving even, tangentially, the president of the united states if or as of when the committee of the house of representative s is investigating impeachment. >> no, justice stewart, i'm not. the subject matter -- these two matters, is the same subject matter. >> well, here are -- >> should the president -- >> seven people have been indicted. six of whom remain under indictment. >> right. >> the trial is scheduled for next september 9. >> right. >> the prosecutor is preparing
for that trial. he is trying to, under rule 17 of the federal rules of criminal procedure, to adduce matters to be used in evidence at that trial. you say that cannot go forward because of some tangential effect or, you say, direct effect upon some other matter going out in another branch of the government. and how far does your -- >> i say it should not go forward a this time, at the very least, because the subject matter being inquired of in the large measure before the house committee is exactly the same subject matter being involved in this argument. >> how do we know? >> namely, should the president produce tapes? should he -- >> well, what -- >> not stand on -- >> one in these tapes involves the impeachment proceedings. >> pardon? >> what, in any of these tapes, is involved in the impeachment proceedings? >> well, if your honor please, the house of representatives have subpoenaed these and more tapes. >> well, i don't know which of the tapes. i assume you do. >> no, i don't.
>> you don't know either. well, how do you know that they're subject to the greater privilege? >> well, i do know that there's a preliminary showing that they are conversations between the president and his close aids, and -- >> regardless of what it is. >> regardless of what it is and may involve a number of subjects. >> but you don't know. >> but does not the special prosecutor claim that the subject matter is the same? >> he claims that, but he has no way of showing it. in fact, he says it's only probable or likely. there is no way of showing that they, in fact, involve the subjects of watergate. >> this claim was honored but this court -- all would have to leave the evidence and go to judge sirica who would take it, examine it in cameras. >> i presume that's so and he would then -- it would be made available to the special prosecutor. the special prosecutor says that, of course, this would then become part of the impeachment proceedings, and here we are. >> mr. st. clair, going back to this murder witness situation.
if the president, any president, witnessed an automobile accident and was the sole witness of murder, as mr. justice stewart suggested, you're not indicating that his testimony, his evidence, would not be available to the court but merely that he can't be subpoenaed but might give it back by deposition as several presidents have in the past. >> that is quite correct. >> the testimony of the justices of this court has been given in past times by depositions, has it not? >> really, it's a matter of accommodation not as a matter of assertion of a right of one branch over another. but the point i want to make, justice burger, is that the same subject matter is inexorably involved in both proceedings, now proceeding on at the same time. and, the house of representatives has not sought the -- >> if that's true, why are you willing to give up 20 or so? >> well, that's a very good question i'd like to answer. the decisions that are made in an impeachment proceeding,
justice marshall, are essentially political decisions. >> well, i'm talking about this case. you say you'll give up 20 of them in this case. >> yes, we will because they've already been made public. >> the tapes or the transcription? >> we are -- as soon as a judge approves some method of validating the accuracy of these tapes, they can have -- >> the tapes? >> they can have the tapes, but you have to understand. the tape is a part of a reel. a reel may cover a dozen conversations. so, there's a mechanical problem of trying to validate or be sure that this is correct but it's only a mechanical problem. but once that's solved, subject to the judge bellow's approval, they have the availability of that but -- >> would the tapes that you're willing to release be valuable to the watergate committee in time? >> we think so. that's why we made them. >> well, i thought you said you didn't want them to have anything. >> no, sir. >> and this was merely an evident way of getting stuff over to him, but you were
getting some. >> i say this. i say the president should decide as a political matter of what should be made available to the house, that the court ought not to be drawn into that decision. >> that's the problem. he has no right to take that view. >> the house takes a different view. the house has subpoenaed something in the neighborhood of 145 tapes, and that's a political decision. >> so if the house can get them, the president can get them, and the only people i know who can't get them is the court. >> the president has not honored any of the subpoenas other than the first one issued by the house, so that there is a dispute in the house now between the president and the committee on the judiciary. it's essentially a political dispute. it's a dispute that this court ought not to be drawn into and this result of a decision in this case would inexorably
result in being brought into it. >> you have been pointing to me that we're brought into it by deciding this case. how are we drawn into the impeachment proceedings by deciding this case? >> the impact of a decision in this case, undeniably, mr. justice brennan, in my view -- >> well, any number -- >> cannot have -- it will not be overlooked. >> any number of decisions of this court has -- >> what i would think would be inappropriate thing to do at this time because there is pending -- >> you've been arguing we have absolutely no authority -- >> no, i -- >> constitutionally to decide this case. >> i will argue that in a moment, but i'm arguing now that you should not. i'm arguing now, sir, only that you should not because it would involve this court inexorably in a political process which has been determined by the constitution to be solely the function of the legislative branch. and, it cannot be that the impact of the court's decision in this matter, which is one of the principle matters now pending before the house, would be overlooked. it would certainly, as a matter of realistic fact, to have a
significant impact. >> but as i have said before, we have the beneficiaries here are six defendants who are being tried for criminal charges. and, what the president has made freedom completely -- >> mr. justice douglas, we -- >> is that true theoretically? >> it may. the brady issue, we don't believe, is properly before the court and has not been briefed by us nor by my brother. >> and was not decided by the district court. >> and was not decided by the district court. i would only say this, that in the experience that i've had in connection with cases tried such as the stan mitchell case in new york, the chapman case in washington, the ehrlichman case now going on. there has never been a claim that the president has not made available appropriate and adequate brady material. but, i don't believe it's before this court at this time, what is before this court is a prosecutor's demand for evidence. and may i direct my regards for
a moment to that problem. he says that, in effect, we have no right to be here. we have delegated the who, the when, and with what issues to him. we have delegated the who and the when. and, pursuant to that, he has indicted a number of people and he has indicted him as such time as he thought appropriate. but, even he concedes that we did not delegate to him what presidential conversations would be used as evidence. that was reserved, and he concedes that that is the fact and that's what is at issue here. not when and who is to is to be indicted, but what presidential communications are going to be used as evidence? and that's what the issue is in this case. >> mr. st. clair, you left me in a little bit of doubt about this mechanical problem. i think, perhaps, we diverted you from it. are you suggesting that on a given tape, which is a real type of thing having an hour or more
of material and maybe several hours or -- >> two or three days. >> two or three days? i see. that the first three hours might be the material which has already been transcribed and released, the next three or four hours might be a conference with the joint chief of staff or the chairman of the atomic energy commission on the program to give under developed nations, for example aid for peaceful uses of atomic energy, matters totally irrelevant but confidential. is that your argument? >> it's my argument and the fact. for example, in the -- >> and you want some mechanism set up so that these things can be screened out. >> they have been screened out in the transcripts. whatever has been published to the public, we are quite prepared to verify the accuracy of.
in the course of those transcripts, there are first portions left out. >> have you, at any time, tendered or proffered a statement that a particular tape from 18 minutes after 11 until 3:00 that afternoon, including the lunch hour, included a conference with the secretary of state, the secretary of defense, and someone else having to do with totally unrelated matters, has that kind of a tender been made? >> no, we simply published the portion of that conversation that did not relate to that with a notation that a portion has been left out. >> but no explanation of why it's left out. >> it was let out because it did not involve presidential action as it related to watergate or something to that effect. we did not disclose the substance of that left out material. >> is there any particular reason why at least the identity of the coquetries could not be made -- >> there might well be such a reason. my proper to my brother has been
that we will verify the accuracy of the printed transcript. so, this 1,240 odd pages of presidential conversations that are available to the public and available to him will be usable in the trial. now, this may well involve a mechanism approved by the court involving counsel for the defendants to be satisfied. so, they're satisfied that the copy is accurate. but, this all have to be expurgated out of a reel of tape that may involve several days' conversations. >> but in the -- >> but it's essentially a mechanical problem. >> but in the tapes that they ask for in this subpoena duces tecum, which is the only thing for court, has any effort been made to say what, if any, part of that can be published? >> other than the 20 that are already published, no effort has been made as yet, sir. >> why not? >> because, if your honor please, we haven't felt that it
has been necessary to do so because we firmly feel -- >> well, why -- well, you don't think -- >> that the president has every right to refuse to do so. >> you don't think that a subpoena duces tecum is sufficient reason for you to pry? >> well, we move to quash it. >> you just ignored it, didn't you? >> no, sir, we didn't. we moved to quash it. >> you filed a motion to quash it, didn't you? >> and we -- >> and the difference between ignoring and filing a motion to quash is what? i want his answer. what? >> well, if your honor please, we are submitting the matter -- >> you're submitting the matter to this court. >> to this court, under a special appearance on behalf of the president. >> you still leave it up to this court to decide it. >> well, yes, in a sense. >> yes? >> in a sense. >> well, in what sense? >> in the sense that this court has an obligation to determine the law, alright? the president also has an obligation to carry out his constitutional functions. >> you are submitting to this court for us to decide whether or not executive privilege is available in this case. >> well, probably, the question is even more limited than that.
is the executive privilege, which my brother concedes, absolute or is it only conditional? >> i said, in this case. can you make it any narrower than that? >> no, sir. >> well, do you agree that that's what's before this court and you are submitting it to this court for decision? >> this is being submitted to this court for its guidance and judgment with respect to the law. the president, on the other hand, has his obligations under the constitution. >> are you submitting it to this court for this court's decision? >> as to what the law is, yes, of course. >> if it were not so, you would not be here. >> i would not be here. now, my brother says i have no right to even challenge his right to be here, and i'd like to deal with that for a moment. this is, as we point out in our brief, essentially an executive department matter. whatever may have been the arrangements between the branches of the executive matter
with respect to evidentiary matters, and in fact there were no arrangements regarding evidentiary matters, it is not the function of the court to direct or rule what evidence will be presented to it by the executive and that executives dully prosecute it. if this was a united states attorney, this case wouldn't be here, of course. it's here only because certain things were delegated to the special prosecutor. but, the special prosecutor was not delegated the right to tell the president one of his conversations are going to be made available as evidence. that was specifically reserved and the only thing that my brother can do is argue about it, and that's what he's doing right here today. and, therefore -- >> now, why wouldn't this case be here if this were a united states attorney? i think i agree with you, but i'd like to ask you your answer in knowing why. >> well, the united states attorney would be directed. >> by whom?
>> by the president or the attorney general at the direction of the president. >> i thought the attorney general was the one who directed the united states attorney. >> by the attorney general at the direction of the president. >> no, in the normal case, the president doesn't know anything about mine-run federal prosecutions. that's fair to say, isn't it? >> i think so, but most cases don't involve presidential conversations. >> and, in fact, in mine-run cases the attorney general doesn't know much about it. >> i think that's -- >> but let's -- just a moment.[laughter] >> with all due respect. >> right. [laughter] so, the united states attorney brings to prosecution and in the course of that prosecution he, before trial, subpoenas under rule 17 of the federal rules of criminal procedure. the jury subpoenas material in the custody of the president. so, what happens? >> the president says to the attorney general "i'm not going to produce this material." >> no, it's the united states attorney subpoenaing it under your hypothetical case. >> that's right.
>> and so, what happens? >> in my view, the president would instruct the attorney general to instruct the united states attorney to withdraw his motion. >> and the united states attorney says "i'm not going to do that because i'm -- >> then we'd have a new united states attorney. >> the one who upholds justice -- well, how would you have a new united states attorney? >> well, i made a little -- >> no, i'm being serious because -- >> i think that united states attorney, in all respect, would and should be removed from that case. >> i know. >> the executive power of the government is not vested in the united states attorney. it's vested in one man, and that man is the president of the united states. >> well, it's set by statute. it's vested in the law enforcement. it's vested in the attorney general. >> yes, but that statute, which my brother cites in his brief -- >> yes? >> does not deprive nor could it deprive the president of his constitutional authority to be the chief law enforcement officer. he shall take care to se that the law is enforced.
the executive power is vested in him, in one man. and, the attorney general is nothing but a surrogate for the president of the united states. >> but, i'm afraid, your argument would be -- is a very good as a matter of political science. it would be a very fine one as a matter of constitutional and probably statutory law, except it hasn't. your client dealt himself out of that argument by what's been done in the creation of the special prosecutor. >> perhaps as to everything -- >> you've just pointed out the special prosecutor is quite different from the united states attorney. >> right. >> as a matter -- >> perhaps, with respect to everything except, the president did not delegate to the special prosecutor the right to tell him whether or not his confidential communication should be made available as evidence. so that, within the package of executive power -- >> but he has -- >> normally represented -- >> excuse me. >> normally represented by the executive department as to who shall be prosecutor that's been delegated to this gentleman. he has exercised that power. when, he's done that. with what evidence, he's done that as we'll deal with in a few
moments. but, not with that portion of the evidence that's available that constitutes presidential confidential communication. that's been specifically reserved. and the special prosecutor cannot, and even if the president did give him that authority, probably could not, as a constitutional matter, delegate that. but in any event, he did not -- >> he didn't what? he could not and probably could not -- >> the right to order the president to give up confidential communications. that was not delegated. >> i know, not the unfettered right to get it but the right to go to court and ask a court to decide whether or not he's entitled to it. >> right, and the president, under no circumstances, gave up any of his defenses with respect to that. >> you're making those defenses in -- >> and i'm making them right now. and even if we did agree between us that we would vest this court with jurisdiction simply because of the politics of the situation, this court in its decisions would not accept the vesting of such jurisdiction.
>> why not? >> because this court determines its jurisdiction. >> we don't know that. >> the parties can agree that it hasn't but- >> yes, but -- and if surely you're right, as i say, a lawsuit between the secretary of commerce, for example, suing the president over a matter of executive policy, we both agree, would be unthinkable. and since any cabinet officer is the creature of the president who appointed him, the answer would be "you're fired," if you want to -- >> if it goes that far. >> if it goes that far. >> that's right. >> but aren't we here both factually and, i suggest, legally with quite a different situation? >> i think not in the terms of separation of powers, if i may. my brother's point of view is, he views himself as the united states as distinguished from a member of the executive branch. and, in his brief, he invokes the united states is really a fourth entity. >> well, the sovereign people of the united states. >> constitutionally, a special
prosecutor with the powers that my brother suggests he has is a constitutional anomaly. we have only three branches, not three-and-a third or three-and-a half or four. there's only one executive branch and the executive power is vested in a president. now if, for political reasons, the president wants to dole out some of those powers, he may so do and has done in this case. but, he cannot vest jurisdiction on a court that, otherwise, the court would not have nor should the court accept jurisdiction. >> but hasn't your client also inhibited himself from the ultimate sanction that you suggested he could impose with respect to your hypothetical united states attorney, i.e. the sanction of dismissing the special prosecutor. >> that is correct. >> and as a matter of law, regulations that have the force of law. >> that is correct, and he has not been dismissed. >> and until or unless he is -- >> nor is he likely to be dismissed. >> we have a case of controversy
of a very real kind. >> the point is, if i may make it, the only issue here is whether the president gave up his right to protect the confidentiality of his conversations. >> certainly, he hasn't. >> no claim is made that he did. >> you're a living testimony of the fact that he did not give up his right to defend his position in court. [laughter] >> and my brother concedes. >> the very fact that the delegation to mr. jaworski gave him the right to contest the president's claim of privilege presupposes that the president had a right to assert the privilege but not the right to assert it necessarily with complete finality. >> that's -- >> that's the -- >> that's what we -- >> that's what we're really arguing about here today, isn't? now -- >> if we get beyond the subject matter situation. now, if this were the nixon against sirica case where you didn't have what i think is a dispositive problem in this case, namely, the lack of jurisdiction in the judicial branch to determine this
intra-executive branch if we had a grand jury subpoena, as was true in the nixon against sirica case. then, you have intra-branch and the court would have a better standing in its responsibility to see the grand juries which are under its jurisdiction to have such evidence as they thought appropriate. but, we're well beyond that stage. 17c requires a great, much more restricted form of evidence that's got to be relevant and admissible. it's nothing like a grand jury subpoena. >> mr. st. clair. >> yes, sir. >> with reference to your point about whether there are three branches or three-and-some fraction, is not the controller general something of an autonomous fractional more than a third branch figure? >> well, i don't think that the controller general -- >> he's a creature --
>> represents, if your honor please, that basic constitutional structure has been changed. it may be that he has executive -- >> but he may proceed but not -- >> and he may have legislative functions. >> he may proceed with reference to the executive branch and, i would assume, with reference to expenditures of the legislative branch and without consulting either one of them. is that not it? >> i understand. he is created by a legislative, very much like a semi-independent agency. in one aspect, he's an agent of the legislature. in the other aspect, he's an agent of the executive. but, we don't have any more than legislative, judicial, and executive branches. >> mr. jaworski, as i understand it, is claiming that he's somewhat like, not necessarily precisely like but somewhat like the controller general. that, he may make decisions and that congress cannot recall him short as, i believe, a 15-year term for the controller general and no president can fire the controller general.
and, i suppose, the court could not fire him. >> well, i'm sure the court couldn't. i'm not too clear about the president under the myers case. i really haven't thought that much of it. it could be that he could be fired, but i think that's really somewhat beside the point because this issue really turns on an admission that, as to the element of the executive power here involved, namely, presidential conversations, they weren't delegated. so, whatever else may have been delegated, those were not. and, this court has no jurisdiction to resolve a dispute as to whether or not they should be given up because that would involve this court in the prosecution of the case and the judicial -- >> can this court decide what's necessary for trial of a criminal case? >> it can, sir, with respect to third parties but it should not involve itself with the
executive function of prosecuting the case. >> my only question was if this is a subpoena duces tecum that was issued by a judge, right? >> yes, sir. >> slightly judicial. >> entirely judicial. >> and that's what's before us. >> and, that, we move to quash as we -- >> but that's what's before us. >> the denial of our motion to quash is one of the issues before us. that's right. >> the only thing before us is whether or not the subpoena is at issue. >> i guess it's about the same thing as whether or not it should be quashed and i think -- >> that's right. >> that amounts to the same thing. >> so, that's not political. >> well it is not, in the context of the proceedings here but, in the context of whether it's in fact involved in this case, it is, i suggest, political in the sense that this information being sought admittedly will become available then to the house.
>> we mean political -- well, i don't see whether house has got anything to do with the court that i'm talking about. you said it's a political and not judicial. and, i submit it could be judicial because it involves the issue of subpoena. >> well the question is, is it a proper issue of a subpoena. >> that's right. >> judges make mistakes, as do lawyers, and maybe even presidents, for all i know, but the point i want to make with you, sir, is that this is an executive function, an executive decision, one not delegated -- >> well the executive function is, as i understated, the discussion as to whether he should voluntarily turn over to the special prosecutor. we have passed that stage. we are now at the stage where the prosecutor has asked the court to assist him and the court has assisted him. does that not take it a step
beyond pure political or executive? >> we submit that the court improperly assisted him, that the court has no right to determine what the executive will offer in evidence. >> i get that. i see. >> and, this is the function of the president. no one has contended that the president has given up his executive responsibilities under the constitution and, certainly, the prosecution of criminal cases is an executive function. >> and that's actually -- now, you're arguing absolute privilege. >> yes, sir. >> absolute executive even though everyday it's so you loose another one. >> i beg your pardon? >> you turn things loose everyday, i suppose. >> no, we don't turn them loose everyday but we have turned a number loose in the president's discretion in which he thought was an appropriate thing to do, and that's his determination that governs, we suggest. >> is he getting ready to turn 20 more case loose. >> no, this would be repetitious, your honor. when, already, it has been made public. >> well, i thought you said in your brief you would turn 20 loose?
>> those 20 -- those would be the tapes of 20 conversations already made public. >> you released those tapes? >> we'll provide a means whereby their accuracy can be verified. >> that's -- >> to release a whole reel of tape involving a number of conversations poses a mechanical problem. >> you still saying the absolute privilege to decide what shall be released and what shall not be released is vested in one person and nobody can question it. >> in so far as it relates to the presidential conversation that is correct, sir. >> but you're now dealing, as i understand -- >> that's another issue. >> mr. st. clair with the jurisdictional question and, as i further understand it, that that argument of yours, at least i got it from the brief, involves at least two separate concepts and maybe three. one is that this is an intra-branch dispute, and that argument would be fully valid under the analogy you use in your brief. if this were a dispute between, let's say, two committees in one of the houses of the congress and one committee sued the other
for jurisdiction of a particular matter, you suggest and probably quite correctly, that that would not be a matter for the judiciary to determine. that's one argument. that this is purely an intra-executive branch controversy, as it would be between two congressional committees. this is intra-article 2 branch. the hypothetical case would be intra-article 1 branch. and then, you have quite a separate argument, it seems to me, i.e. that the president constitutionally is the chief prosecutor since he is the executive. and, it is not for the courts to decide what a prosecutor shall use in prosecuting a criminal case. now, isn't that -- aren't those two separate arguments? you make both of them under this rule brick. -- rubric. >> that's correct, sir. i don't know how separate they are but i'll certainly make use of both of them. >> well, it seems to me they're quite separate. >> but i'm making both of them
and if they're separate, fine. now, with respect to -- >> well, the second argument will have no relevance at all to your analogy of the legislative branch. >> well, i don't want to mislead the court into thinking that i believe mr. jaworski has no right to determine any evidence that he communes. >> but ultimately, you tell us that, constitutionally, the president as chief executive and, therefore, as constitutionally the chief prosecutor or whatever the statutes might provide -- >> that's correct. >> has unrestricted discretion to determine what evidence he will or will not use in prosecuting a case. >> that is correct. >> which is quite a different concept from the other concept. you make them both under the same rule brick, as i say. but i -- it seems to me, they're quite separate arguments. >> and i think they're well-founded in the law. >> i know you do or you wouldn't make them. >> now i'd like to move, if i may, to briefly -- the suggestion that the issue here is non-justiciable on the grounds other than i've already mentioned, namely, the context in which this case unfortunately
finds itself. it seems to us, briefly, that the case is non-justiciable for somewhat more technical reasons. first, this is an issue where if someone has to exercise some discretion, there are no real bounds or standards by which that discretion should be exercised. and, by traditional standards of this court where that exists, then this court ought not to take the case. secondly, it seems to me, there is a textual constitutional grant if we assume that the grant of executive power includes the means by which that can be effectively exercised, second ground. third, of course, there is the political involvement which i have suggested. therefore, i suggest quite briefly that even if there is subject matter jurisdiction, the case is non-justiciable for
these additional reasons. the standards of baker and carr, and powell are not applicable here. there are no individual's rights over being protected against the onslaught of government. the president is not here as an individual. he is here as a constitutional officer and whom the executive powers rested. there is no philosophy that would support a finding of justiciability on the grounds that were strengthening the democratic process, as was true in powell and also into a greater extent in baker and carr. if anything, a decision in this case against the president would tend to diminish the democratic process. this president was elected on the theory that he would have all the powers, duties, and responsibilities of any other president. and if it's determined that he doesn't, there is a certain
amount of diminution of the political aspect of the case in so far as the constituents who voted for him are concerned. this president ought not to have any less powers than any other president ought to have. one of the necessary results, as i view it and my brother's argument, is that because of the circumstances of this case richard nixon is, let's say, an 85% president not 100% president. and, that can't be constitutional. the framers of the constitution had in mind a strong presidency. as we know, they considered a number of alternatives, maybe a presidency consisting of three members. all of those suggestions were discarded and a strong presidency was decided upon, may i say, to the distinct advantage of this country as history has developed.
now by reason of an action of a grand jury, the special prosecutor suggests that this president has something less than any other president would have. i would only call your attention to the action of the framers in constitutional convention when the issue was raised as to whether or not a president who was under impeachment should be suspended during the pendency of the impeachment proceedings. and, the decision was definitely he should not because the framers envisioned a strong active president even in the course of impeachment proceedings. they did not want this country to be led by someone who didn't have those full powers even if he was then under impeachment. and, indeed, this president continues to function as president as he should even though there are impeachment inquiries underway. >> mr. st. clair, if i may interrupt you again. is this -- is what you're
telling us now directed to your point that this is a non-justiciable political question or is it directed to your point that executive privilege is absolute and that the determination of it is to be made public? >> i think it involves both. it's non-justiciable, if i may, because it does involve the court in a political matter. now, mere fact that politics is involve, of course, has not prevented the court from taking action in appropriate cases where individual rights were involved or where the franchise of voters could be strengthened by the decision of the court. i'm suggesting, in this case, the converse is true. therefore, the justification between baker and carr and in the powell case is not available or is not applicable here. furthermore, however, the argument still, in my view, has force with respect to the consequences of the grand jury
action in naming him as a co-conspirator which we suggest they were not qualified to do. the president is not above the law by any means. but the law, as to the president, has to be applied in a constitutional way which is different than anyone else. namely, we suggest that he can only be impeached while in office and cannot be indicted until such time as he no longer is in office. >> well, let's assume we accept that proposition. what follows from it? >> well then the naming of the president by a grand jury as a co-conspirator, if that has the effect of diminishing the president's rights, it's a pro tanto, if i may say so, impeachment. >> i should think you could run the argument the other way saying that since the president cannot be indicted then all that can happen to him is that he can be named as an unindicted co-conspirator.
>> that could be said but by the naming him of an unindicted co-conspirator, we suggest, is an intrusion by the grand jury on a function that is solely legislative and not judicial. >> well, the president or any president could be sued for back taxes, penalties, or what not? >> well in questions of immunity, i think, individually he could be -- >> but it speaks of persons, any persons? >> that's correct. i think the president could be sued for back taxes in his individual capacity. but in terms of his power to affect the responsibilities of his office to protect the presidency from unwarranted intrusions into the confidentiality of his communications, that's not a personal matter. >> it may be if one of these defendants might be exonerated from something in one of those
cases. >> as i had suggested, that if that defendant will satisfy a court that there is such a tape and will identify or even come close to it and persuade the court that that would exonerate him or there's reason to believe it might, i don't believe will have a question. but, that's not what my brother here is asking for. he's asking for a set number of tapes, not for brady purposes. although he throws that in, but he really wants them, he says, for prosecution and i'd like to review with the court the question of the necessity shown for this because, even on his theory of a qualified privilege, there has to be a showing of some necessity. now we should understand, i'm sure the court knows, that all of these individuals here involved have testified before the senate select committee with the exception, i believe of mr. colson who now has plead guilty under a plea bargain where he's agreed to cooperate so the special prosecutor has the full
benefit of his testimony. they have testified on one or more occasions before a grand jury. in addition, the president has furnished to the special prosecutor the transcripts and tapes of the critical conversations involved in this alleged conspiracy. i might reveal those very briefly with you. mr. dean in his senate committee testimony suggested that on september 15 the president acknowledged knowledge of a cover up. he changed that later to a testimony that he believed that was so or it was inference. but in any event, the president furnished that portion of that tape of the conversation with mr. dean. mr. dean also testified that on march 13, 1973, he discussed the cover up with the president in efforts to blackmail the president by one of the defendants who broke into the democratic national
headquarters. later developed that that was mistaken and it was actually on march 21 and the grand jury indictment proceeds on the theory of march 21. the tape of the conversation of march 13 was furnished. all of the conversations between the principals being two in number on march 21 were furnished. the conversation between the individuals and the presidents on the next day in the afternoon, march 22, was furnished. and, a large number of additional conversations were furnished. now if reynolds means anything and reynolds, in addition to the kaiser aluminum case, noted a constitutional question, as i think one of the later justices suggested, one of the reasons for not facing that issue in that case was it was not necessary because in the case it was a crash of a bomber that was on a secret mission and the court said that the parties had the testimony of the witnesses,
the survivors, and other testimony so it wasn't necessary to get to the constitutional question. i suggest that that's true here. it's difficult for me to conceive a prosecutor who has more evidence than this prosecutor has. he has the full benefit of a senate select committee investigation which staff had 50 odd lawyers, existed for a year. he has the benefit of his own investigation of a grand jury that sat for 19 months with an investigative staff of similar proportions. he simply says, "i need this because i want to present all of the evidence in the case." he does not say -- >> mr. st. clair, do you suggest then that even if the prosecutor could get this from a normal third party witness, he can't get it from the president because of executive privilege, that there must be a further showing beyond the relevance
showing 17c? >> well, as we pointed out in our brief, a tape of a conversation is very raw material. >> well your answer is yes, isn't it, that there is a further showing necessary? >> that's right. does he really need this? what does he say he needs it for? he says -- >> but how does a district court go about to decide a question like that in advance of trial without it unless the prosecutor lays out his entire evidence and says, "it's my judgment that this is evidence. without this evidence, i might lose the case." >> he doesn't say that. he made a showing to the court below. the showing is available to you here. >> but you would suggest that he would have to do that. >> he has the burden. he has the burden under reynolds, under kaiser aluminum, and so forth. the show that he needs and what does he says he needs it for. he doesn't say he needs it to obtain conviction. >> i must say that while i've got you interrupted, i want to ask you something else. >> yes, sir. >> and it's related to this.
no matter how absolute the executive privilege is that you claim on behalf of the president, i assume you are talking about conversations to which the privilege would apply. >> yes. >> now, is it -- >> we have to make such a showing and i say that's our only burden. >> you wouldn't suggest that every conversation the president had while he was in office would be subject to executive privilege. >> no, it would have to be a confidential communication. >> well, it has to be in the course of his duties as president. >> yes, but it's president -- >> carrying out his duties as president as under the constitution. >> yes, sir. >> now, i don't suppose if he was talking with one of his aides, mr. haldeman and mr. ehrlichman, about an investment of his out in california or some other place. >> or a tennis game or whatever. >> yes, you wouldn't suggested that -- >> my brother doesn't suggest that's what he wants either. >> well, how about conversations about a campaign, about the nixon campaign?
now, that's hardly quite an -- >> that's a little closer -- >> well, it's very close to the -- yes, this is very close to -- >> the president as a political office to -- >> this is very close to executing the laws of the united sates and running a political campaign. >> i don't think it's very close, no. >> and so conversations -- >> i don't think my -- >> conversations about that subject matter -- >> my brother isn't seeking any such conversations. >> well, i know, but shouldn't you -- shouldn't the president have to say at least even if the privilege is as absolute as you say it is, shouldn't he at least have to say i believe or assert that the executive privilege applies to this tape because this conversation is in the course of the performance of his duties as president? >> well, as i read some of the cases -- >> you haven't done that either, have you? >> we have not done that. we have simply responded to an assertion that these all relate to watergate, assuming that to be the fact.
>> would you automatically say every conversation about watergate is in the course of the performance of the duties of the president of the united states? >> i would think it would be. yes, sir. >> why is that? >> because he has the duty; (a) to enforce the laws, that is to prosecute these cases and; (b) he had to take care to see that the laws are enforced, that is to investigate. and, much of this material does relate to the investigation as 1,200 and some pages of the public transcript fully discloses. but i would be ready to concede, and i don't think it's a difficult problem between us, that the president should show that the circumstances are appropriate for the claim of such a privilege and i think such language appears in mink and perhaps in reynolds and in kaiser aluminum. simply, it has to be a confidential communication first of all. >> and how about -- do you concede or view -- what is your view of the privilege with respect to whether it reaches factual assertions in a
conversation? the difference that was made in the mink case and another with respect to opinions and judgments as distinguished from the facts? >> first, mink, i believe, was a -- >> statutory case. >> statutory case, but that was one of the exceptions. >> so what is your view? would you say if a conversation is merely a recitation of fact, it is still covered by executive privilege or -- >> yes, it is, if it's confidential and it's between the president and some advisor with respect to him because, otherwise -- >> that hasn't got much to do with the decision making process, just pure cold facts. >> it might well have to do with the decision making process if the facts are such as were developed in the course of an investigation with regard to the existence of a obstruction of justice charge, much of which the president was involved in.
but the fact against opinions and decisions really relate to another situation, as i suggest, in the statute. but, the conversation that the president has with his advisers, we suggest, is absolutely privilege. it's a discretionary matter that he has to exercise in what he is going to release and not release. and since marbury and madison, mississippi and johnson, it's been clear that the court will not direct a president to exercise his discretion in any manner. this is not to say the court won't strike down, as in sawyer, excessive action on the part of the president or excessive
action on the part of the legislature. that has happened in a number of times. but, it's a far different thing to suggest that the court should undertake to direct the president to exercise his discretion in a certain manner. it's not a ministerial duty by any means. it's a matter of discretion. there are some things he feels he properly should, under the circumstances, make available and others he shouldn't. >> with respect with that particular incidence, the one here involves the relevancy of materials to a criminal trial and, that, normally has been a part of the judicial power under article iii, not the executive power. >> i'd like to discuss very briefly gravel, if i may, for example. i think this raises a very important question. there is, of course, an explicit speech and debate immunity in providing the constitution. as our brief indicates, the reason for this is quite clear. it's to protect the legislature from unwarranted invasion from the executive and perhaps the judicial. it does not mean that the executive is not entitled to substantially the same thing by implication. and at least in the civil field,
as we have pointed out, the courts have worked out by implication as a necessary ingredient to the function of the duties of the executive an absolute immunity from civil liability for actions taken within the sphere of the official. swelling and violas, i guess, is the leading case as cited and barr v. mateo, and other cases. if such a matter can be worked out with respect to the executive on civil matters, we suggest there is no reason why and, in fact, the court should spell out a similar exemption in criminal matters especially as they relate to the president, himself, because while i said the president is not above the
law, the law can only be made applicable to him in a certain way while he is in office. now if a junior congressman can commit a crime on the floor of the house as apparently as possible, under gravel and johnson, is it to be said that the president of the united states has less immunity than a junior congressman? i think not. so that, i suggest to you that common sense and proper construction of the constitution impinged within the grant of executive power all of those necessary ingredients to make it work to be effective which would include immunity and criminal immunity. the president, we suggest, cannot be indicted, can't even be named as a co-conspirator because that's an assumption of a legislative function under the constitution. and, therefore, we suggest that even if this is criminal the president is immune from the ordinary criminal process. he is not immune from process,
but that process that's available to the president is a process of impeachment which does not include the function of the judiciary branch. and, therefore, we say that if, under gravel, the congressman is entitled to immunity even from criminal conduct where actions taken within the legislative sphere of his conduct, then it would be very hard to support a proposition that the president, as the chief executive of the country, is entitled to less. >> except they didn't put him in the constitution. >> right, and the reason they didn't, sir, was it was not found to be necessary. they didn't put civil immunity in the constitution either for the executive branch and this court has found, of course, that
there is such an immunity. i'm sorry, sir? >> [inaudible] >> it was a speech and debate clause case and it even forbad as i understand the gravel case, the grand jury inquiry into motivations and actions of the senator and his aid. >> because the constitution said so. >> right, and i suggest the constitution, by clear implication provides the same not only for the executive but for the judicial as well, but certainly for the executive. >> and if we can't find it in the constitution, what happens to your argument? >> well, i would suggest you should find it in the constitution. it need not be explicit. it can well be implied. >> the question is if we can't find it, what happens to your argument? >> if you cannot find it? >> yes, sir. >> then, if your honor please, that portion of the argument is lost as far as this court's concerned, i guess. >> don't you -- you haven't lost your other point which says this court can set up the same kind of privilege that they've set up in others. >> that's correct. and, we're suggesting that it should in this case not necessarily because a great deal is now left to be gained by expunging the grand jury action.
my brother is right. the damages has been done and we think quite improperly so. we think the tactics involved with the prosecutor in seeking to make, enlarging the scope of admissible testimony is hardly worth what has been done here but it's been done. but, it seems to me, history would e served by granting of the relief we have prayed for below, namely, to expunge this. secondly, it seems to me the american people would feel better about the fairness of the issues now pending before the house is this act which we say was improper and illegal were expunged. but in so far as the mechanisms of this case are concerned, it destroys or removes a basis upon which they contend they are entitled to these documents. i'd like to address that for a moment. >> we've been asked many times to do that in other cases with respect to the grand juries. up today, i don't think we've ever come near anywhere to it. >> and up today, you've never had a president of the united states named as a co-conspirator either, sir. >> that's very true. >> and the president of the united states --[laughter] and i don't mean to be facetious about it but the president of the united states, we suggest, can be proceeded against only by impeachment while in office and his powers are unabated until such time as he leaves that office. now, with respect to this
suggestion that a grand jury finding his prima facie evidence -- >> that, of course, have never been decided either. >> no. this case is unusual in many respects. this suggestion that a grand jury finding is prima facie evidence and, therefore, the president has lost whatever privilege he otherwise would have had it just isn't borne out by either the facts or the legal issues and principals involved. the grand jury finding is not prima facie evidence. even if it's mentioned in an opening argument in a criminal trial, there's a grave risk of a mistrial. the cases cited by my brother, particularly the clark case, are clearly cases which require a showing in court or, in clark, a showing to the judge that there was prima facie evidence of wrong doing. you may recall that's a case involving investigation into a
juror as to whether or not the juror had performed properly, and the juror had been shown, had testified falsely in the qualifications that she had never had any business relations with one of the parties when, in fact, she had. the court said "well, there's a finding of wrong doing and, based on that, now i will look into the juror's deliberations to see what she did." but, justice cardozo made it very clear that if he hadn't been able to make a prima facie showing a wrong doing by evidence before him there would have been no cause for "letting in the light," as he put it. and, the un case and other cases which are relied on by my brothers are all cases where there was a prima facie showing in a courtroom. a grand jury charge is not prima facie. in the first place, it's only accusatory. it's not even admissible nor can it be referred to in a trial.
secondly, it can well involve incompetent evidence, as this court recently decided, and it's totally inappropriate to suggest that a president who otherwise would have a very valuable privilege and i think i should emphasize the value of these privileges because it is a valuable privilege. all you have to do is read justice reed's decision in kaiser aluminum when he spells it out quite clearly the importance and value of this privilege to simply say to have a grand jury make a charge that destroys that privilege is an argument that i don't think can be sustained. >> mr. st. clair, you have not mentioned in your argument a few moments ago on the question of the absence of any provision for immunity for judges or presidents, you haven't mentioned the holding of this
court in pierson against raid whereas, i recall it, the court assumed with the sentence or two that there was absolute privilege for the judiciary but that the privileges of the executive, in that case a policeman, was qualified. the court had no difficulty in concluding that it did not require an express constitutional provision to spell out an absolute privilege for judges. these were state judges in that case of course. >> that's right. well, if your honor please, i don't believe that simply because the constitution does not explicitly state immunity, as it does in the speech and debate clause, should this court
hold it does not exist in criminal matters. i would like to make one point with the court however, because i'm sure the point will be raised concerning justice carr for example. there is a distinct difference, as we pointed out in our reply brief as we view it, between a president of the united states, a single individual in who the entire executive function is vested. a president serves 7 days a week 24 hours a day, and only he or those under him performing his functions can exercise the executive function of our government. now, if a congressman or a senator or even a judge -- >> or a vice president. >> or a vice president is removed from his duties, matters go on. but a president doesn't have that opportunity to take a vacation and it's vested in one individual and deliberately so. >> this is pretty far-field from the basic question here, which is the testimonial privilege. >> we say it's a constitutional -- >> not prosecutorial immunity, but testimonial privileges are
what we're dealing with here basically. >> that's correct. i think so. i would want to the point with you that we think the privilege we're arguing for is both common law and constitution. >> i understand that. >> it's constitutional because it's inherent in the executive power. >> i understand your argument. but this matter -- >> and it's common law because it has always existed. >> whether or not they can -- a judge can be prosecuted criminally or is -- >> it has to do with these questions of immunity. >> it has nothing to do with testimonial privilege, does it? >> well, my brother seems to think it does because they say, because of the implications of criminality here the president has lost something he otherwise would not have had. >> i understand that. since i have already interrupted you, may i? >> please do. >> to rail upon your good nature a little more mr. st. clair, to ask you whether it is your claim that any of these materials have to do with what have sometimes been called matters of state, i.e. matters of international relations or national defense. mr. jaworski assure to us that
they did not involve matters of state, but i'm about to hear what you have to say about that, because as you well know both the commentators and court decisions have made a dichotomy between the privilege that exist with respect to ordinary general confidentiality on one hand of the executive, and matters of state on the other to which a higher privilege has sometimes been thought to be accorded. >> well, i think if a higher privilege has been accorded, it should not. but in any event, the privilege of confidentiality is not unimportant. however, let me direct myself to your question. the answer to your question is no one knows. >> but you -- >> you won't know until you listen to these tapes as to what subjects are discussed. my brother can only state that it's probable they relate, at least in part, to whatever he says, watergate. or it's likely that it might. and, i have had the experience for exempt where circumstances were such that the house
committee felt that it was likely that a conversation took place between the attorney general, mr. mitchell, and the president regarding plans for surveillance of democratic parties. when you look at the conversation, it wasn't there at all. >> but in this tape -- >> so, i have no way of knowing nor does the prosecutor know what additional matters may be interwoven into these conversations. one thing is certain. >> am i correct in believing, mr. st. clair, in understanding, mr. st. clair, that in this case to date no representation has been made by affidavit or professional representation or otherwise that any of these materials have to do with national defense or international relations? >> no, and no representation could be made to the contrary either. >> and that would be, therefore,
a matter to be under the existing order now under review of judge sirica. that would be submitted to him later in camera, correct? >> if this court finds -- >> i say under his existing order. >> yes, that's right. >> right. >> and the president presumably, if he were to comply with that order, would make such a representation in an appropriate case. but the fundamental point is we believe the reason stated that the president's right to confidential advice is important and it's actually fundamental to the proper function of his government and in many instances, as i suggested, even more important in military matters or matters of state, so to speak, because no matter what the conversation is of course it's the fact that it might become public that involves them this chilling effect we've made reference to in our brief under the first amendment but as a practical matter. and, i can see it myself.
the communications are not free and open because who is to say that it won't be becalmed before a grand jury? and, most everyone in the white house has been becalmed before a grand jury, sometimes several times. the fbi has interviewed every secretary that has any knowledge of any aspect of this case. this prosecutor has a plethora of information. he says he wants to try this case with all the evidence, so he knows better than that. nobody tries any case with all the evidence. you'd be buried in minutia. you select the evidence that you think most appropriate to your case. you don't try it with all the evidence. and this special prosecutor has mountains of information. >> who is to determine how much evidence a prosecutor needs? only the prosecutor -- >> that's correct, not the
court. and if that evidence constitutes presidential confidential communication, and i suggest if your honor please -- >> many cases -- >> the president determines that. >> many cases have been lost because the prosecutor had too much evidence. >> well, i suggest that's probably the fact here. so, when my brother says "i don't need this evidence to win these cases in my opinion, but i need them so i can present all the evidence," i've been trying cases long enough to know and so does he that's not what he's really after. >> yes, i've tried a few too, but mr. st. clair-[laughter] i was just wondering. where do you see the burden here? is it on the prosecution? >> the burden under 17c is clearly on the prosecution and the burden in clearly on the prosecution on every other aspect. >> alright, and now, how much is enough for our phrase to be kicking around prima facie here? >> well, i suggest whatever was considered by this court in reynolds to be enough is more than enough in this case. we have the testimony of every individual involved. a number of them have pled guilty. dean has pled guilty. colson has pled guilty. comeback has pled guilt, etc., etc. all under plea bargains where
they are under obligation to fully cooperate. this prosecutor is not, nor does he say at any point that he needs this information to prosecute successfully these cases. >> mr. st. clair, just to pinpoint another issue, let's assume for the moment that we didn't agree with you on your test of privilege and let's just assume that the only issue that was left in the case was the 17c issue. now -- >> then the president wins, in my view. >> well, because? >> because the prosecutor cannot show that the evidence he seeks is relevant and admissible. >> you think -- >> because of the nature of the circumstance, he doesn't know what's in there. >> well, i suppose there are two parts to the question. one, how much of a showing does he have to make as to what's on -- what might be on the tape and, secondly, if that matter that he claimed is on the tape is on the tape, is that relevant and admissible under 17c?
>> but you'd have to know what the matter was or what the issues in the case were. but under bowman and iozia, it's not enough to show that it probably is or it might be or is likely to be. it must be shown to be relevant and must be shown to be admissible. >> but, mr. st. clair -- >> that's why it's not a third party scheme. >> you can't put an impossible task on someone who wants a subpoena against a third party witness or against anybody else. as to showing what is precisely on innocent documents, i would suppose. >> well -- >> here -- >> if you want to utilize the 17c, then i suggest that's what you have to do. >> he's never listened to the tapes. he doesn't know precisely what's on them. you would say that he could never subpoena a tape unless he had already gotten it. >> as a prosecutor, that's right. as a grand jury, that's another matter.
if he had brought -- sought this under a grand jury subpoena, we would then be directly faced with nixon against sirica which we happen to think was improperly and incorrectly decided. but under 17c, we are dealing with the prosecutor's subpoena. the evidence of decided cases makes it quite clear there must be a specific showing of relevance and admissibility. now, if he can't do it because of the nature of the matter then -- >> well, that isn't what 17 -- >> that's his problem, not mine. >> the cases you're talking about are cases where a defendant sought discovery of evidence from the -- or sought material in a prosecutor's files. >> most of those cases are but there is at least one case, i think it's grossman, that says the rules are equally applicable to the prosecution. it's cited in one of the footnotes in our brief. but, the 17c subpoena is conceptually a subpoena for known information. conceptually, if the prosecutor is looking for things, he should utilize a grand jury subpoena.
in that case, i think in bowman, they wanted the prosecutor to produce each document he was going to use in the presentation of his case. that's specific. it's obviously relevant and admissible. >> so once he gets through with the grand jury, he shouldn't be using a subpoena to develop his case? >> that's correct, and certainly not under these circumstance. >> do you think that's the practice in the -- >> i think it is the practice. i think that the grand jury practice is far greater than perhaps the constitution has envisioned. it's really used today, frankly, as an effective discovery tool. >> mr. st. clair, may i get back to what seems rather fundamental to me? let us assume that it had been established the conversations we are talking about here today did involve a criminal conspiracy.
would you still be asserting an absolute privilege? >> yes, quite clearly, under the analogy that was provided, i may. >> right, and as i understand it, the public interest behind that privilege is the preservation of candor in discussions between the president and his closes did. >> quite clearly so. the simple reason, sir -- >> may i follow that up? >> i'm sorry. >> what public interest is there in preserving secrecy with respect to a criminal conspiracy? >> the answer, sir, is that criminal conspiracy is criminal only after it's proven to be criminal, and we're not at that point yet. >> my question was based on the assumption that it had been established that the conversation did relate to a criminal conspiracy. >> that is, the case has been tried and defense found guilty. >> well, no. it could have been established in various ways. as you've just said, a number of people have already confessed and these people were participants in some of these conversations. >> but the fact that one defendant confessed does not make the other defendant guilty.
>> of course. but anyway, your answer is that you would still assert the action through. >> first of all, the answer is yes even if it is criminal but, more importantly, it is yes because criminality is something that is not necessarily determined at the time that you must resolve the issue. and, that you should not destroy he privilege in the anticipation of a later finding of criminality which may never come to pass. it is quite conceivable that a number of these defendants will be found innocent and in fact, in theory, they are innocent right now. >> what is the public interest in keeping that secret? >> to avail the president, if your honor please, of the free and untrammeled source of information and advice without the thought or fear that it may be reviewed at some later time when some grand jury, in this case, or some other reason suggest there is criminality.
for example, it's very important -- i'm sorry. >> he did release them for the grand jury in this case. >> yes, in the president's discretion, he did that. and, it's a discretionary matter. but, for example, the simple matter of appointment, if i may, an appointment of a judge. it's very important to the judiciary to have good judges. it's not at all unheard of for lawyers to be asked their opinion about a nominee. now, if that lawyer wants to be sure that he's going to be protected in giving candid opinions regarding a nominee for the bench, it's absolutely essential that that be protected. otherwise, you're not going to get candid advice. now, this isn't a state secret. it isn't national defense. i suggest it's more important because that judge may sit on that bench for 30 years. >> but don't you think it would be important if the judge and the president were discussing how they're going to make
appointments for money? >> i'm sorry, sir. i didn't understand your question. >> don't you think it would be important in a hypothetical case if an about to be appointed judge was making a deal with the president for money? >> absolutely. >> but under yours it couldn't be. in public interest, you couldn't release that. >> i would think that that could not be released if it were a confidential communication. if the president did appoint such an individual, the remedy is clear. the remedy is he should be impeached. let me give you this -- >> how are you going to impeach him if you don't know about it? >> well, if you know about it, then you can state the case. if you don't know about it, you never had it. >> you're on a prong. it's a dilemma. >> no, i don't think so. >> if you know the president is doing something wrong, you can impeach him but the only way you can find out is this way. you can't impeach him so you don't impeach him. you loose me someplace along there.[laughter]
>> this is i think what was suggested in the seaborg case where the court said "gee! if that's so, then floyd could be all covered over and so forth." human experience is not demonstrated and that's a fact. very few things forever are hidden. secondly, however, this case is not that case. as i pointed out, there is a plethora of information. this is not a case where there is no information. if anything, there is more than enough. >> what you're telling us also could be argued the other way, that there has been a waiver and neither -- >> that is suggested by my brothers. >> your brother has talked about waiver. i don't know what he suggested. >> my brother suggests a waiver, but this privilege is not like fifth amendment privilege or attorney-client privilege where if you let out one word, you'd lost the whole thing. that would defeat the purpose of it. as we point out in our brief, public policy requires as much publicity as the president in his discretion determines would be appropriate and the more
information, the better. and if you require -- if you rule that one utterance constitutes a waiver, you're not going to get it. you're not going to have that thing. this is a discretionary privilege that the constitution, by implication of necessity, and history has shown is inherent in the executive function as, indeed, it is in other functions. we've cited in our brief similar examples of the legislature insisting upon such a privilege even against subpoenas from courts, executives, and the courts themselves. >> mr. st. clair, you're cutting into your rebuttal time now. >> i know i am. i do appreciate being reminded of that and i think i would preserve of which i think is 10 more minutes.
argument of philip a. lacovara >> mr. lacovara. >> thank you, mr. chief justice. if i may, i would like to advert first to procedural questions that mr. blackmun and mr. justice stewart have raised about whether the mandamus case is properly here. mr. justice, we did, in our certiorari petition, refer to the fact that we were trying to bring before the court for review before judgment in the court of appeals the order of the district court which we said the president had tried to obtain review of in two ways in two cases in the court of appeals, and we gave the docket numbers of those two cases. and, that certiorari petition was filed on may 24 and judge sirica, who was the respondent as justice stewart properly notes in the mandamus case in the court of appeals, was served with a copy of the certiorari petition as he had been served with the mandamus petition as, indeed, had all the respondents who were otherwise before the court, the defendants in united states against mitchell. on may 28 in accordance with a
motion that was filed in a court of appeals, a copy of which i believe is in the files of this court, the court of appeals transmitted to this court the records in both of those cases, the appeal and the mandamus cases. now, mr. justice stewart, with respect to judge sirica's appearance here, he is a party before this court and i believe there is a letter on file with the clerk of this court from judge sirica in which he states that he will not appear separately the united states through the special prosecutors appearing on behalf of judge sirica as, indeed, we would have in the court of appeals to uphold his decision enforcing our subpoena. so the case, procedurally, is properly before the court both with respect to the appeal and the mandamus proceedings. i'd like to- >> the fact that i'd like to ask before you get too far, let's assume you get by the jurisdictional matters and also the standing question, the intra-executive dispute matter, and we get to the executive privilege or we get to the merits, so-called.
>> yes. >> which into this case would we normally start at anyway, the 17c end or the executive privilege end? >> well i think, normally, you might start with 17c end because that would provide for a conceivably for disposition on non-constitutional grounds if you found that we had not made a sufficient showing to satisfy the ordinary requirements of the rule. so, in accordance with court's normal jurisprudence -- >> mr. lacovara, judge sirica found that you had satisfied the requirements. >> absolutely, he -- >> then what's the scope of our review? >> we have made the suggestion that any appellant court reviewing this kind of determination applies the standard of whether the district judge was intimately familiar with this indictment and with the 49-page appendix showing that we submitted in demonstrating why each of these 64 subpoenaed conversations was material.
he made the finding that we had clearly demonstrated relevance and an evidentiary nature -- >> what's our standard of appellate review? >> and your standard review should be whether he has abused his discretion. >> clearly erroneous? >> clearly erroneous standard, yes, sir. >> what about the standard? >> i'm sorry, which -- >> based on the standard he followed, what about the basic standard of 17c? >> the parties are in agreement that bowman dairy and iozia that district court decision established the basic criteria -- >> the government is in agreement that the standards of iozia must be satisfied in this case under 17c? >> well, we have suggested that it's possible that a lower standard can be applied. >> well, that's what i'm asking you.
what is your position? >> well, my position would be that when you're talking about a subpoena to a third party, as distinguished from an intra-case subpoena between government and defendant, a lower standard or relevancy or materiality should -- >> so the parties are not in agreement at all? >> well, we have suggested that even if the proper standard is applied, that we meet that standard because of the showing that we made that each of these items is -- >> do you mean a necessity standard? >> necessity in a sense of being relevant to the issues to be tried and being of an evidentiary nature. now, the necessity standard comes in more in determining whether the executive privilege claim should be overwritten if, apart from the waiver fact and what we call the clot point -- >> well, what about mr. st. clair's argument? under 17c you can't possibly satisfy its requirements because you don't know what's in the tapes. >> that, obviously, we don't think is a proper legal standard and the courts have said. in fact, we go back to chief justice marshall's opinion in the burr case where exactly the same suggestion was made by the united states attorney in opposing the subpoena, that burr hasn't specified which portions
of general wilkinson's letter were really going to be material. and chief justice marshall applied with his eloquent common sense, of course not, because he hasn't seen the letter yet but he's made a sufficient averment that it does contain something material, that at least it should be brought into court. now we have, as i say, gone much further than colonel burr did. >> you think iozia just means only evidentiary and relevant. is that what you -- is that your reading? >> when you're talking about a subpoena between the parties, yes, sir. they talked about other criteria, which i think are really subsumed whether it's a fishing expedition, whether you're going off on a frolic. but as the later cases, as i believe judge sirica indicates, seem to have distilled that -- >> so you don't think iozia and bowman requires any showing that this particular evidence be something more than evidentiary and relevant? >> that it'd be critical? no, sir, i don't believe so. i think that, as you were suggesting before and as judge sirica held, it's never been the law that once an indictment is returned the prosecution is not entitled to continue gathering evidence. the burdens of proof before a
grand jury and a trial jury are clearly different. it's an abuse of the grand jury process that has been held to use a grand jury subpoena, as mr. st. clair suggested, to continue gathering evidence after an indictment is returned. >> yes, but you apparently concede that you can't use it just for discovery. >> yes, sir. >> and you say the evidence you're seeking by a subpoena, you must make some kind of a minimal showing of admissibility. you can't, for example, seek something that would admittedly be an admissible hearsay. >> well, i hope i'm not conceding more than i should. but, the rule does talk about subpoenaing material from a person on a showing that it will be relevant. it's rule 17 and i'm talking a position which is narrower than, of course, you're suggesting, mr. justice, that i might take.
but, in all candor, the rule talks about subpoenaing documents from a person not only from a party. mr. justice douglas, i believe you earlier mentioned that the rule applied only to subpoenas to parties, but the rule specifically provides for subpoenas to persons who are not parties to the case. but it says, and this was the clause that we were relying on here, the court may direct that the books or papers be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence. so, there does seem to be some natural focus about the evidentiary nature of the materials. >> i just want to get the government's position because it is a rather important part of the case. >> yes, sir. we insist, as judge sirica found, that with citation of chapter and verse, if i may, in our 49-page showing before the
district court with references to sworn testimony as well as with representations about what witnesses will testify trial we demonstrated why each of these subpoenaed conversations satisfies the bowman dairy v. iozia rule 17c standard. now, that leads me into the related point. what is the relevance of the grand jury's finding that the president was a co-conspirator in this case? it has been alleged that we did this in order to prejudice the president's rights. i think we have sought to demonstrate in our reply brief that that was in no sense -- >> mr. lacovara, i don't think it'd be very hard to understand the developments of a showing at the trial for purposes of
evidence that certain people are co-conspirators -- >> yes, sir. >> for purposes of introduction of evidence. but, that's a little different question than the relevance of grand jury having come to that conclusion. >> yes. normally, i will concede, it is not the practice, as anyone who's been a prosecutor knows, for the grand jury if it is not identifying the co-conspirators in the body of its indictment to place them on the record. it is fairly common practice, however, for an indictment to say in addition to the defendants named persons or unindicted co-conspirators. this is not an ordinary case and -- >> it may be so but even if they named it in the indictment, that isn't enough on which to base the introduction of out-of-court statements by an unindicted co-conspirator. >> yes, that was the point that i wanted to get to in discussing what we call our clot argument. we have never argued, and of course there would be no basis for arguing that the mere grand jury finding, whether on the face of the indictment or in the
grand jury's minutes, that the president or any of the other 18 unindicted co-conspirators were members of this conspiracy would, itself, be enough at trial to want judge's admission of extra judicial statements given by those co-conspirators. we are not making that contention here. the issue arises because a motion to quash a subpoena was filed prior to trial. and, the basis for that motion was a claim of executive privilege, a governmental privilege that exists fro the benefit of legitimate governmental processes. we countered that apart from nixon versus sirica and the balancing process, and apart from the waiver argument that we also develop in some length, this president, as difficult as it was to say this not because of the evidence but because of the inherent awkwardness of it, this president is not in a position to claim this public privilege for the reason that a prima facie showing can be made that these conversations were not in pursuance of legitimate
governmental processes or the lawful deliberation of the public's business. these conversations, as we showed in our 49-page appendix and as the grand jury alleged, were in furtherance of the criminal conspiracy to defraud the united states and obstruct justice. we did not rely even before judge sirica and we do not rely here merely on the fact that the grand jury made this determination. we do submit that, for purposes of a pretrial consideration of a subpoena that is challenged on grounds of executive privilege, we are not confronted with the need that we will be confronted with a trial in which we fully intend to discharge of showing by evidence to the trial judge that the president and the other co-conspirators were members of the co-conspirators. >> one of your grounds for the non-applicability of the privilege is that these conversations were in the course of the conspirators.
>> yes, sir, and we -- >> and that, you say, is satisfied by merely the grand jury? >> no, sir. no, absolutely not -- >> just a moment. >> i'm sorry. >> it isn't satisfied merely by the grand jury finding so a court must go on and make it so a determination if they were going to agree with you on this ground. >> let me back up a little. i see the point that you're making. we are taking the position that the grand jury's determination is conclusive on the court on two issues: (a) that a conspiracy existed, and (b) that president nixon was a member of the conspiracy. that is not enough, we concede, to override a claim of executive privilege because, as mr. st. clair well says, he is still the president and he still is in the position to invoke executive privilege. where we had said we must bear an evidentiary burden to the satisfaction of the court is on drawing the nexus between the subpoenaed conversations and the
conclusively determined prima facie showing that there is a conspiracy in which the president is a member. we made that evidentiary showing to judge sirica. that showing is before this court. judge sirica found that showing was sufficient and for that reason, as i believe his opinion although it had to be guarded because these items were placed under seal, reflects that he did make the showing. >> that showing or such a showing could arguably have been made whether or not the grand jury had named the president, would it not? >> yes, sir. it could have been made as an evidentiary matter, but we are -- >> and you say it was? >> pardon me? >> isn't it your position that it was independently of the naming of the president as an unindicted co-conspirator? >> yes, sir. the evidence that was placed before judge sirica, we would submit, would be sufficient to make that showing. now, we have said that that is not legally necessary.
that we did not have to make, didn't have to prove a conspiracy, in effect, prove the whole case that may take three months to try in order to defeat a claim of executive privilege before trial. this court has frequently said that criminal process would be burdened down unduly if proceedings were preceded by many proceedings. that's exactly what we have here. we submit the evidence is sufficient. judge sirica, the evidence, this is a situation in which the showing that we did submit intrinsically, we submit, tracks the allegations of the indictment and provides independent evidentiary support for those allegations. we have said, though, that it is not legally necessary in a proceeding like this for the court independently to decide whether the grand jury had enough evidence before it to say there is a conspiracy or that a particular individual was a member of the conspiracy. we said all you need to find is
that we have shown that these conversations were in furtherance of that conspiracy. >> mr. lacovara. >> sir. >> just back up a minute. do you concede that an incumbent president of the united states could not be indicted and tried for crime? >> no, sir. >> you do not. do you think he could be? >> we have not expressed a position on that, mr. justice powell. >> let's assume for the moment that he could not be, would you still argue that the grand jury had the power or the right and, if so, by virtue of what? >> yes, we argue that -- >> to name him as an unindicted co-conspirator. >> we do, in fact, make that argument at some length. i guess all of our arguments are made with too much length, but we do argue at length, sir, seriously that the question of presidential indictability which we offer some views on just to show that het question is an open one because of our
obligation, we believe to the law and to the court, is not really determinative of the question that is really in this case to the extent that the court reaches the expungement argument advanced by counsel or to the extent that the court does not reach the so-called clark argument that executive privilege just cannot be invoked here. the issue of presidential indictability does not determine the issue whether an incumbent president can be named as an unindicted co-conspirator by a grand jury. we have shown in our brief why even persons who do have some constitutional immunity, and counsel argues that, implicitly under the framework of the constitution the president should have an implicit immunity from prosecution even such persons can be and frequently are named by grand jury as unindicted co-conspirators.
the practical arguments that may militate in favor of a judicial recognition of some unique immunity for the president alone, not for circuit judges, not for supreme court justices, not for members of congress but the president alone, it may be held at some later date, is immune from prosecution but, by no means, suggest the answer to the question here. and, the grand jury elected not to test that issue. >> the thing that i was wondering about is that there is only one president and the executive power is vested in him, and i do wonder whether or not the precedents you said with respect to other people would vest this to a grand jury either on his own motion or because of some prosecutor suggested while the president is in office to name him as an unindicted co-conspirator with grand jury
sitting all over the united states. and, occasionally, you find a politically motivated prosecutor. that's a rather far-reaching power, if it exists. >> it is, mr. justice, and there's no doubt about it. we are conscious of the delicacy of the issue. we have suggested, however, that although there is some conceivable opportunity for abuse our judicial system, our democratic system, is based on a several fundamental propositions. one of which is that grand juries usually are not malicious. even prosecutors cannot be assumed to be malicious. we also assume, as this court regularly holds in first amendment cases dealing with public officials, that we have a resilient society where people can be trusted to sort out truth from falsity.
we have a robust debate. i submit to you, sir, that just as in this case a grand jury would not likely accuse the president of a crime. so, to that fear that perhaps without basis some grand jury somewhere might maliciously accuse a president of a crime is not necessarily a compelling reason for saying that a grand jury has no power to do that. i think the system may be vibrant enough to deal with that and i think the inherent dignity of the presidential office and any incumbent providing him with a notable check against being defeated or, as my colleague says, impeached by the action of a grand jury. this is perhaps the most notorious event and notorious case in recent times. when the grand jury's action was disclosed, i venture to say that although it was difficult time
for all concerned, including prosecutors as well as other counsel and the president and the country. the president has not been displaced from office. he still is president. he still functions in accordance with his constitutional powers. >> mr. laco -- >> excuse me. >> mr. lacovara, i wanted to get to this mechanical question that mr. st. clair brought up. assume for the moment that a given tape, one of the 46 is it that you're asking for? >> 64, sir. >> 64, i hadn't transposed. one of the 64 tapes is, in fact, one-eighth of the total time, which might be several hours apparently because they're long tapes but, one-eighth involves discussions of the people who are indictment here. but the seven-eighths of it in fact, now you have to assume this, includes conferences with the secretaries of the cabinet, the joint chiefs of staffs, the chairman of the atomic energy
commission, very high-level people and perhaps some staff people as well. including in those conversations some highly sensitive material, not sensitive in the sense that it's national military secrets or diplomatic secrets but sensitive in the sense of confidentiality. would you not think that some mechanism ought to be available that if the participants are identified, as you got them all identified by the voluntary submission of the president as to the 64, that if the participants are identified in the timeframe specified that the certificate of the major persons present that the subject was atomic energy, all sorts of other things, would be sufficient to foreclose the court from examining it in
camera. >> well, to foreclose -- >> i'm asking you, would you think so? >> the answer to my question, mr. chief justice, is yes because these are the procedures that have been set up in the court of appeals decision of nixon versus sirica which were found to be eminently practical when the tapes subpoenaed by the grand jury were submitted. these are six-hour reels and, under the so-called index and analysis which the court of appeals in that case required to be submitted and which judge sirica here has required to be submitted, counsel for the president says this is a six-hour reel. the watergate-related portions are minutes 312 -- no, that's too many -- 112 through 146. prior to that, there is a meeting between the president
and the secretary of health, education, and welfare on a school bill. after the watergate-related discussions, there is a meeting between the president and representatives of the national association of manufacturers. what has happened is that white house counsel has come to the judge's chambers with the original reels. they have marked the beginning of the watergate-related portions on those reels for the court to make his independent determination. this is watergate-related and, therefore, offset by whatever overcoming of the privilege has been held. and after that is done, a copy of the watergate-related portions is made. the judge does not listen to the non-watergate-related portions which are still covered by a presumptive executive privilege which we have freely conceded from the time the grand jury began this process in july of '73 to our briefs in this court.
>> then, as to these hypothetical seven-eighths, there is, you suggest, no disagreement between you and mr. st. clair and mr. jaworski, and you on the one hand. >> that's correct, sir, and i might say that under the procedure that was worked out, this may pre-date mr. st. clair so you'll have to rely solely on my representation, president indicated a willingness to allow the judge to listen to a few moments of conversation on either end of the portion of the tape that had been listed in this index and analysis as being watergate-related just so he would have an assurance that there was a transition from one subject to another subject. that was created by the president as being -- if a minimal intrusion on the confidentiality privilege for an unrelated subject certainly, by no means, an excessive one. >> mr. lacovara, i know you have only very few minutes. are you going to address mr. st. clair's opening argument that
the pendency of the house judiciary impeachment inquiry either should leave the court to conclude that this whole business before us are non-justiciable matter. therefore, necessarily with judge sirica's order should be quashed or, in any event, that because of the possible effect of a decision on the issue presented upon the impeachment inquiry, that the court should stay its hand. >> that was to be my last point, sir, and i will make it right now. the notion that because there is concurrently underway an impeachment inquiry before the house of representatives that, somehow, makes this a non-justiciable political question. it is, we think, a remarkable notion which is not supported by sound and constitutional law or by any of the decisions of this court. and indeed, i submit, that to the extent that the court has
discretion in the matter and although this court has now been given discretionary certiorari power, district courts have no such option. it would not even be a wise exercise of discretion for this court to stay its hand. this case before the court is not a request for an opinion between two congressional committees as to who has jurisdiction over a particular bill. it's not even a request for a dispute between cabinet officers or the president and a cabinet officer over what proper executive policy ought to be. this is a criminal proceeding of federal criminal case against six defendants. a subpoena had been issued to obtain evidence for use at the trial which is scheduled to begin on september 9.
the court cannot escape the fact that this is a trial of tremendous national importance, but a trial that was brought to ahead without regard to the impeachment inquiry. this is an independent separate constitutional process that is underway, and a traditional prosaic remedy. a subpoena has been utilized to obtain evidence for that trial. there's some debate about whether the evidence is critical to our prosecution. i know that in justice rehnquist's opinion a few weeks ago in michigan against tucker that he echoed or presaged perhaps the same point that judge sirica made that it's really the obligation of the prosecution to present all of the material evidence for the jury, for the fact-finder to pass upon. that's what this case involves. now to say that there will be public consequences, even
political consequences, to the court's action does not mean this is a political question so that the court must regard it as non-justiciable. the same argument would have prevented this court from deciding marbury and madison. it's common knowledge that chief justice marshall, himself, was threatened with impeachment if he decided the case against president jefferson. he went ahead and did his duty on behalf of this court. later, in connection with the burr trial -- >> he decided it in favor of president jefferson, didn't he? >> no, sir. >> he didn't? >> no, sir. he says that, expressly -- >> he surely decided it that jefferson won the case of the battle but the lost the war. >> well, if you -- >> of a judicial supremacy. >> the case is normally thought of as being solely concerned with original jurisdiction. but if -- >> but in that sense -- >> if one reads the case again, sir, i submit, chief justice
marshall got to the original jurisdiction point only after he had been very decisive in saying that a lower court could issue and should issue and would be obliged to issue the mandamus to secretary madison because the president had not legal power to order secretary of state madison not to issue that commission. he held that. it might be called dictum but it certainly, at the time, was a courageous act. >> but the basic ruling in the case related to the original jurisdiction of the court under article iii, did it not? >> i concede that, sir. later, however, when he did go on in 1807 to issue the subpoena to president jefferson, that was an act of profound political consequences but he stated it again eloquently that it was the court's duty to obtain evidence if it were material to the trial. the notion that political consequences should stay the hand of the court is a notion that, again speaking through marshall, the court rejected in cohens against virginia and the
cherokee nation case where it was common knowledge that the state legislatures in virginia, in georgia, would interpose themselves and defy this court. and marshall uttered the words, which i think are justly famous, "just as the court can't reach out for jurisdiction it doesn't have, it has an obligation to exercise the jurisdiction it have, it has an obligation to exercise the jurisdiction it does have whatever may be the political consequences of that act." the court's action in ex parte milligan in telling president lincoln that he did not have the power to conduct the civil war the way he wanted to conduct it, again, profound political consequences. come to the war power cases in world war ii, the japanese exclusion cases, this court did not say because of the consequences for the president or because of the political reaction to a decision one way or the other the court should stay its hand. in youngstown, our colleague's brief closes by quoting justice
frankfurter's brilliant concurring opinion saying how the court should, as an institution, be reluctant to decide great constitutional questions. but, he went on to say we have an obligation to look into an assertion of presidential power. and even if the embarrassment to be caused to the president by our disagreeing with him would be profound, it is still the duty of the court to tell him when he's wrong. this court, in powell against mccormack, how could there be a more political case than telling a house of congress that it had to see the member that it excluded. but, the court said the constitution forbad it. it's up to the court to decide what the constitution allows, and even though the court interprets the constitution differently from another branch, that's the judicial process. so, separation of powers here with the notion of political question whether something is committed to the final determination of another branch far from supporting the
president's position demands that the court affirm the action that judge sirica has taken. this is emphatically the providence of this court to decide. not to belabor the point, but perhaps the finest chapter in the court's recent history has come upon these chapters and had come in the fields of reapportionment, civil rights, and the procedural rights of the criminally accused would be naïve to say that those were not profoundly politically important decisions but they were made as decisions of constitutional law despite the consequences that political branches might face. despite the public reaction, the court understood its duty to interpret the constitution.
that's all we ask for today. that's all judge sirica has done. we believe he has done it correctly. we believe the case is fully justiciable. we believe the principles that have been briefed by the parties support the correctness of the decision below. and, we submit that this court should fully explicitly and decisively and definitively uphold judge sirica's decision. >> thank you, mr. lacovar. mr. st. clair, you have 15 minutes left. >> thank you, mr. chief justice and members of the court. in response to my brother's most recent argument, of course sawyer was an important case with political implications. of course, the other cases were in it of themselves important cases with political implications. but, this case is different in that the decision in this case will have an undeniable impact on another proceeding in another proceeding which the
constitution says is essentially a political proceeding from which the court is excluded. and for this court to be drawn into that thicket, if i may call it that, seems to me highly inappropriate at least at this time. as i indicated at the outset, the house committee has made certain political decisions. the president has made certain political decisions. they will each have to bear the responsibility of those decisions with the american people. this court should not impair, interfere with, or otherwise participate directly or indirectly in that proceeding. and, it's inevitable it would happen. this courtroom wouldn't be full today if this were simply a suit on a subpoena brought by the special prosecutor against the president even though that would be an important political matter because the president is involved. but, this is important for other reasons quite apart from that.
other reasons which i suggest indicate quite clearly that this court ought to, in its discretion and in its judgment, stay its hand at least until such time as those proceedings have run their course because those are political decisions being made. they should not bear the burden either way of a judicial decision. >> well, under that theory, all the criminal trials that are going on should stop today. >> that would not be the first time, mr. justice douglas, that a criminal trial was delayed. and in balancing the importance to this nation, i would suggest that that is clearly indicated and i don't believe the defendants would be crying very bitter tears. but in any event, the justiciability of this case, seems to be, the single important obvious matter that my brother would prefer not much to talk about, but there can be no doubt about it. if you read page 59 in his brief, he says "he, the president, is now the subject of an impeachment inquiry by the
committee on the judiciary of the house of representatives and the subpoenaed evidence may have a material bearing on whether he is impeached and, if impeached, whether he is convicted and removed from office." and, i suggest the constitution in all of the history, the framers makes it quite clear that the framers conceived impeachment as a legislative process. the court was excluded specifically from that function. marbury against madison, itself, i agree with the chief justice that it decided the case in favor of the president. the rule was discharged and the commission was not issued. but it also helps, and it's been the law since that case, that the courts will not interfere with or direct a discretionary act on the part of the president or any other branch of government, and that's been confirmed in mississippi against johnson and any case since that time.
and, the discretion that the constitution by implication and by necessity that has been vested in the president in determining which of his confidential communications shall be made public or released is a discretionary act that this court ought not by its decision to undertake to do for him because this court is not equipped in knowledge, background, or in any other way to exercise that discretion for the president of the united states. this is not a ministerial act. finally, i observe a slight but significant shift in my brother's position with respect to the prima facie nature of naming of the president as a co-conspirator. i say it can be made now that it can be made prima facie, i take it, that is by examining the evidence before the grand jury in order to determine whether or not that evidence in fact supports that determination.
we have invited this court and judge sirica to do just that. the special prosecutor has opposed in each instance this or any other court looking behind that to see whether, in fact, the evidence can be made as he now states a position to support a charge of criminality. before the argument, the argument was that because it was a finding or a vote, it was prima facie. now it is, i take it, somewhat different. but in any event, an action by a grand jury purporting to assess criminality to a president of the united states is a clear intrusion upon the legislative function and power with respect to impeachment. as i said earlier, the president is not above the law nor does he contend that he is, but he does contend that, as president, the law can be applied to him in only one way and that's by
impeachment, not by naming as a co-conspirator in a grand jury indictment, not by indictment, or any other way. therefore, in this case, i urge that this court take such action as is appropriate and overrule judge sirica's decision and order that this case be dismissed. thank you, mr. st. clair. >> thank you, mr. jaworski, mr. lacovara. the case is submitted. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] listening to the oral arguments from july 8, 1974. the case of united states versus nixon. is evanfrom us new york davis. thank you for being here. as thelook back